CIUDADANIA - AR-L - The Right To The City. Social Justice and The Fight For Public Space - Mitchell

THE RIGHT TO THE CITY
The Right to the City

Social Justice and the Fight
for Public Space
DON MITCHELL
THE GUILFORD PRESS

New York London
© 2003 The Guilford Press
A Division of Guilford Publications, Inc.
72 Spring Street, New York, NY 10012
www.guilford.com
All rights reserved
No part of this book may be reproduced, translated, stored in

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electronic, mechanical, photocopying, microfilming, recording,
or otherwise, without written permission from the Publisher.
Printed in the United States of America
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Last digit is print number: 9 8 7 6 5 4 3 2 1
Library of Congress Cataloging-in-Publication Data
Mitchell, Don, 1961–

The right to the city : social justice and the fight for public space
/ Don Mitchell.
p. cm.
Includes bibliographical references and index.
ISBN 1-57230-847-8 (pbk. : alk. paper)
1. Public spaces—United States. 2. Social justice—United States.
3. Protest movements—United States. 4. Homeless persons—Civil
rights—United States. 5. Urban geography—United States. I. Title.
HT123 .M5656 2003
307.76′ 0973—dc21
2002155032
Acknowledgments
Prompted by my own political involvements and a task set for me by

Bob Lake in his seminar on locational conflict, I have been thinking and
writing about public space for more than 10 years now. I’ve also been
piling up debt upon intellectual debt as my ideas have developed and
transformed. I can’t begin to thank everyone who has had a hand
(wittingly or not) in this book, but here is a start. Thanks to:
Bob Lake for helping spur this interest in the first place and for
continuing to ask extremely productive and insightful questions; and
Neil Smith for encouraging my work early on and shaping it in more
ways than I probably know.
All the reviewers—anonymous and revealed—who suffered through
early drafts of these chapters as they worked their way into print as
journal articles, especially Sallie Marston, who was an early, demanding,
and very supportive reviewer, and who remains so; and Nick Blomley,
who has read and supportively critiqued almost everything I have writ-
ten on public space and on law, and who in addition read through and
provided innumerable helpful comments on the whole book manu-
script.
Matt Hannah, who also read the whole manuscript and provided a
deeply insightful commentary, some of which inspired changes in the
volume, but much of which I hope will bear fruit later, not only in my
own work but in Matt’s too.
Rich Van Deusen and Clayton Rosati, who read through the whole
manuscript in an effort—perhaps in vain—to improve my English and
to keep me from making a fool of myself (Rich additionally tracked
v
vi Acknowledgments
down illustrations); and Reecia Orzeck, who tracked down last-minute

references. All have become comrades and have made the People’s
Palace a great place to be.
Lynn Staeheli, who as a collaborator and friend has pushed my
ideas in new directions, and who has only occasionally complained
about the research wine I spilled all over her in San Diego.
Peter Wissoker, who commissioned a book from me sometime last
century and who left The Guilford Press before seeing the result—
despite years of advice, gentle prodding, and coffee; Kristal Hawkins,
who has taken over for Peter, and figured out how to turn up the heat
enough so I actually did finish the book; K. K. Waering, Jr., who did an
outstanding job of copyediting; and Anna Nelson, who saw the book
through production.
My parents, Jim and Bunny, and my brother, David, and his wife,
Nora, who all provided information and collected newspapers for me
during the 1991 Berkeley riots and who then took the time to disagree
with my interpretations.
Ann and Bob Millar, who have once more provided a genial and
comfortable place in the west of Scotland to put the final touches on a
book.
The geography departments at Glasgow University and the Univer-
sity of Oslo, which provided both resources and comradeship when I
was in the last stages of writing this book.
And, especially, Susan Millar, who has questioned me, supported
my work, and kept me sane in the midst of the madness that is our ev-
eryday lives.
Contents
Introduction The Fight for Public Space: What Has Changed? 1
Chapter 1 To Go Again to Hyde Park: Public Space, Rights, 13

and Social Justice
Public Space and the Right to the City 17
Chapter 2 Making Dissent Safe for Democracy: 42

Violence, Order, and the Legal Geography
of Public Space
Bubble Laws, Abortion Rights, and the Legal
Content of Public Space 43
Regulating Public Space 47
Violence, Order, and the Contradictions
of Public Space 51
Disorder, Violence, and the Legal Construction of Public
Space before World War I 54
Making Dissent Safe for Democracy 58
Regulating Public Forums 71
Conclusion 74
Chapter 3 From Free Speech to People’s Park: 81

Locational Conflict and the Right to the City
Nonconformists, Anarchists, and Communists:
Free Speech in Berkeley 83
From Free Speech to Counterculture: Urban Renewal
and the Battle for People’s Park 105
vii
viii Contents
Chapter 4 The End of Public Space?: People’s Park, 118

the Public, and the Right to the City
Struggling over Public Space: The Volleyball Riots 118
The Dialectic of Public Space 128
The Importance of Public Space in Democratic
Societies 130
The Position of the Homeless in Public Space
and as Part of the Public 134
Public Space in the Contemporary City 137
The End of Public Space? 142
The Necessity of Material Public Spaces 147
Conclusion: The End of People’s Park
as a Public Space? 151
Coda 152
Chapter 5 The Annihilation of Space by Law: 161

Anti-Homeless Laws and the Shrinking
Landscape of Rights
The Annihilating Economy 163
The Annihilation of People by Law 167
The Problem of Regulation 173
Citizenship in the Spaces of the City: A Brutal
Public Sphere 181
Landscape or Public Space? 184
Conclusion 190
Chapter 6 No Right to the City: Anti-Homeless Campaigns, 195

Public Space Zoning, and the Problem of Necessity
“Broken Windows” 199
Santa Ana’s Anti-Camping Ordinance and the Problem
of Necessity 204
Anti-Homeless Campaigns and the Content
of Contemporary Urban Justice 209
Public Space Zoning 211
Conclusion 219
Conclusion The Illusion and Necessity of Order: 227

Toward a Just City
Spaces of Justice 230
References 239
Index 263
About the Author 270

The right to the city is like a cry and a demand.
—HENRI LEFEBVRE,
“The Right to the City” (1996 [1968])
The universal consequence of the crusade to secure

the city is the destruction of any truly democratic space.
—MIKE DAVIS, “Fortress Los Angeles” (1992)
Introduction
The Fight for Public Space

What Has Changed?
On the Sunday following the horrific terrorist plane crash attacks of

Tuesday, September 11, 2001, the New York Times ran a full-page feature
story asking what it would take to make New York’s “public spaces safe
from attack” (Barstow 2001, 1:16). The Times interviewed “nine secu-
rity and terrorism experts” to “envision a New York City of maximum
security where money was no object in the pursuit of safety.” The dis-
cussion was compelling. “Security options once dismissed as unpalat-
able, impractical or too expensive would be embraced,” the Times
wrote. “There would be long lines and intrusive and random searches,
new identification systems and a strange new vocabulary of terms like
biometrics, bollards, bomb mitigation containers and smart doors.” One
of the experts said, plainly, that “You would have to develop a fortress
mind-set” (quoted in Barstow 2001, 1:16).
To some extent, New Yorkers have been preparing for that mind-set
for quite some time. Well before September 11, public space had already
been significantly fortified—or at least radically transformed—in the
name of security over the past generation. Parks had been reconstructed
and fenced, and special enclosed areas for children and their guardians
had been established. The policing of public spaces ranging in size from
small squares to fairly large urban parks and train stations had been
turned over to private police forces paid for by, and under the direction
of, Business Improvement Districts. New strictures on behavior had be-
come not only commonplace but also expected (and always indicated
1
2 THE RIGHT TO THE CITY
by prominent signs) in the city’s streets. Surveillance cameras had be-

come an everyday part of the landscape. Whole public spaces had been
closed off for much of the day, locked tight against unwanted users.
The context for these transformations in New York, as in most
American cities, of course, was not the threat of terrorist attack but
rather the fear of inappropriate users: the homeless, drug dealers, loiter-
ing youth—and, not inconsequentially, political activists protesting in
front of city hall, marching in the streets, or rallying in parks and
squares. The solution to the perceived ills of urban public spaces over
the past generation has been a combination of environmental change,
behavior modification, and stringent policing. The putative reason is to
assure that public spaces remain “public” rather than hijacked by unde-
sirable users.
The experts the Times interviewed in the wake of the terrorist at-
tacks all agreed that further environmental modification was now nec-
essary, including the closing off of the steps to churches, cathedrals, and
synagogues, the installation of hundreds of surveillance cameras around
important public spaces and along “vulnerable” streets, the installation
of more “bomb-proof” windows, trash cans, and so forth. Policing too,
they agreed, should be stepped up. Some argued for the deployment of
armies of bomb-sniffing dogs and their handlers, even the authority to
engage in random stop-and-searches. Others, such as New York City’s
former police commissioner Howard Safir, urged the integration of fa-
cial imaging software into a system of video street surveillance so that
pedestrians could be “compared with photographs of known terrorists”
(Barstow 2001, 1:16), a technology already used in Britain (Rosen
2001) and at the 2001 Super Bowl, where petty thieves were picked out
of the crowd of fans entering the stadium (Los Angeles Times 2001).
A graphic covering much of the page indicates in detail just what
might be in store for New York’s public space (and by extension those of
other American cities): face-recognition cameras on lamp poles; police
or security officers on every corner; dogs and their handlers roaming
the squares and parks; reinforced, more bunker-like buildings; traffic re-
strictions sensitive to changing conditions (through the use of auto-
matic barriers that can rise up through the pavement and close off
streets nearly instantly); the elimination of “all above- and below-
ground parking” near key public spaces and important buildings; con-
tinual broadcasts of public-service announcements throughout public
squares (much like the messages that are broadcast in airports telling
Introduction 3
citizens to be on the lookout); and the installation of numerous plant-

ers, bollards, and blast-resistant trash cans. But interestingly, at the same
time all of this is being proposed, Safir (one of the key architects of New
York’s “quality of life” policing campaign of the 1990s that sought to
stringently police public spaces in the presumed interest of the safety of
middle- and upper-class residents and visitors) argued against adopting
a “bunker, bomb-camp mind-set” (quoted in Barstow 2001, 1:16).
This sentiment was echoed in the Times a week later by the Cooper
Union’s acting dean of architecture, Anthony Vidler (2001), but his in-
flection was decidedly different. Briefly reviewing the history of 20th
century urban development and its relationship to ongoing fear of at-
tacks (ranging from concerns over Zeppelin bombardments to IRA
bombings),1 a history that has brought with it a strong impulse toward
metropolitan deconcentration, Vidler suggests that in the wake of the
terrorist attacks “there will be an understandable impulse to flee” the
city (Vidler 2001, 4:6).2 But, Vidler argues, other cities’ experiences
with terrorism suggest that, in fact, “terrorism alone will not decrease
the importance of city centers for the public life of societies,” because
“real community, as evident over the last week [of spontaneous public
gatherings and memorials], is bred in cities more strongly than sub-
urbs” (Vidler 2001, 4:6).
Vidler (2001 4:6) paints a decidedly different picture of public
space than those “security experts” who see it as a threat: “The street as
a site of interaction, encounter and the support of strangers for each
other; the square as a place of gathering and vigil; the corner store as a
communicator of information and interchange. These spaces, without
romanticism or nostalgia, still define an urban culture, one that resists
all effort to ‘secure’ it out of existence.” Rather than wonder how public
spaces can be made secure and how much it might cost (the experts in
the earlier Times article estimated that “you could do a hell of a job with
less than a billion dollars” [quoted in Barstow 2001, 1:16]), Vidler ar-
gues that true security—or at least an urban life worth living—consists
in publicness itself. The sorts of proposals put forth by the panel of se-
curity experts, Vidler insists, would create “a world hardly worth living
in and would inhibit the very contact through density that cities en-
courage” (Vidler 2001, 4:6). He goes on to argue that “urban public
space has suffered major onslaughts in the last 20 years, from the in-
creasing privatization encouraged by reliance on Internet services to the
expansion of the mall-effect—whereby only the largest consumer out-
lets survive. In the current crisis, it is all the more important that the
idea of public space, and its relations to urban community be sustained”
(Vidler 2001, 4:6).
This book is about that “idea”—and, even more importantly, the
practice—of public space in American cities. The terrorist attacks on
September 11, 2001, did not so much launch a new debate about public
space as serve to intensify one that already exists—and has existed for
as long as there has been the “democratic” city. It is a debate—or more
accurately an ongoing social struggle—that flares up, in varying forms,
throughout the course of the 20th century (and in fact earlier too): as
antiwar activists take to the streets; as labor activists seek to make the
space necessary to press their claims; as free speech activists occupy
ground meant for official pronouncements; as women make a space for
themselves as part of “the public;” and as city after city tries to decide
what to do about the homeless, about teenagers, and about other
“undesirables.” The question that drives this book is the question of
who has the right to the city and its public spaces. How is that right de-
termined—both in law and on the streets themselves? How is it policed,
legitimized, or undermined? And how does that right—limited as it
usually is, contested as it must be—give form to social justice (or its ab-
sence) in the city?
Much early commentary in the aftermath of the terrorist attacks
suggested that Americans (and perhaps especially foreigners living in
America) had better prepare themselves for the inevitable elimination of
certain civil liberties. As the Times noted, even the American Civil Lib-
erties Union was refraining from its usually automatic denunciations of
such talk (Barstow, 2001). But what frequently gets lost in such discus-
sions is the degree to which those liberties are always contested, always
only proven in practice, never, that is, guaranteed in the abstract.
Rights, as we will see in Chapter 1, do not work that way. For homeless
people civil liberties and the right to public space have already been all
but eliminated in the interests of enhancing the quality of urban life—
and the “security”—for housed residents and visitors. For various
movements of free speech—in the 1910s no less than the 1960s—the
right to speak has often been undermined by spatial restrictions on
where one can speak. For workers—and in recent years for anti-abo-
rtion picketers—the very act of picketing has frequently been declared by
no less than the Supreme Court of the United States to be a violent act.
If, as Anthony Vidler suggests, the idea of public space and its role in
Introduction 5
urban life needs to be preserved, then we also need to be aware that that
idea has never been guaranteed. It has only been won through concerted
struggle, and then, after the fact, guaranteed (to some extent) in law.
If Vidler’s (2001, 4:6) vision of the city—especially his call to
“search for design alternatives that retain the dense and vital mix of uses
critical to urban life, rethinking the exclusions stemming from outdated
zoning, real estate values and private ownership”—is attractive (and I
think it is), then the need to continue to struggle over and for public
space is now greater than ever. The automatic impulse during the cur-
rent sense of emergency is to defer to the security experts and their
vision of the orderly and safe city. The alternative implicit in Vidler’s
vision seems, by comparison, highly unpalatable. The sort of city he
promotes must necessarily retain some tolerance for risk and danger. It
must take for granted that at least some level of “fear” will always be
present in urban life. There is no way around that, as unattractive as
such a vision had become even before September 11. Struggle—which
is the only way that the right to public space can be maintained and the
only way that social justice can be advanced—is never without danger
of violence. How that potential for violence is policed, encapsulated in
law, sublimated in design, or turned toward either regressive or progres-
sive ends makes all the difference in the world.
My goal in this book is to examine some of the contours of that
struggle over the past hundred years in American cities. Much of what
follows has been previously published, though all is rewritten and up-
dated, sometimes extensively, sometimes only a bit. My reason for
bringing this work together in a single volume is to make an argument
about the tenuous nature of what the French Marxist and social theorist
Henri Lefebvre called “the right to the city.” That right, as I hope be-
comes clear in the course of this book, is dependent upon public space.
But just what public space is—and who has the right to it—is rarely
clear, and certainly cannot be established in the abstract. I present in
rough historical order, therefore, a series of linked case studies that ex-
plore the relationship between social exclusion, social rights, and social
justice in American public space. The links between these studies are
many, but include a concern with the relationship between social activ-
ism and changes in public space law; the role of marginalized actors
(migratory workers, the homeless) as a focus of social exclusion; the
need not just to produce public space (as so much work in geography
has studied) but to actively take it, if a claim of right is to be made; and
a set of questions about the dialectic of order and disorder as it is

worked out in specific places at critical times—the streets of San Diego
in 1912 as the Industrial Workers of the World were on the march, Peo-
ple’s Park in Berkeley, California, in 1969 as an imagined alternative to
alienated bureaucratic society, the Civic Center of Santa Ana in the
1990s when the homeless were seen as only so many broken windows
marring a landscape poised for economic revitalization, or New York
City in those booming years immediately before September 11 when the
“quality of life” was up for grabs.
Chapter 1 lays out a theory of social justice as it relates to urban
public space. Working through a striking argument by Raymond Wil-
liams about Matthew Arnold’s reactions to the Hyde Park riots of 1866,
I examine some recent statements by commentators that Williams
would have called “little Arnolds”—those who see order as properly
trumping rights in urban space in nearly all instances—to show how
debates and struggles over who has access to public space, and who is
excluded, define the “right to the city”—and why a right to the city
must be at the heart of any vision of a progressive, democratic, and just
world. Part of my argument is that, in fact, rights matter (a position
with which some on the left disagree)—and so does law. I suggest that
“rights talk”—and even more the practical assertion of rights—remains
a critical exercise if social justice is to be advanced rather than con-
stricted.3 Such a claim demands at least a brief indication of how social
justice should be theorized, and so the chapter concludes with a discus-
sion of the relationship between rights, social justice, and urban space.
Social justice, rights, and their relationship to urban space, as I
have indicated, are not determined in the abstract, but rather in prac-
tice. So, in Chapter 2 I turn to these practices. In particular, I try to
show how specific social struggles over public space (and the assertion
of rights therein) lead to transformations of public space law as courts
seek to either adjudicate or eliminate conflict.4 Sometimes the most im-
portant practices are not ones that we like. The most significant recent
U.S. Supreme Court cases about protests in public space have con-
cerned anti-abortion protesters outside clinics and the homes of abor-
tion providers. These cases draw on a long history of case law that in
fact has more to do with controlling (and sometimes eliminating) labor
dissent than it does with the sorts of political dissent exercised by anti-
abortion protesters. I trace this history from its origins in struggles over
the right to speak on the streets by the Industrial Workers of the World
Introduction 7
around 1910, through a series of celebrated, and rather reactionary,

cases concerning “subversive” protesters during World War I and labor
picketers in the 1920s and 1930s, and to the eventual codification of
what came to be known as “public forum doctrine” in the 1950s and
1960s. These struggles and court cases all involved the right to speak—
or what we so often carelessly call free speech—in public spaces, and
they involved a rather torturous, but still exceedingly important, dis-
tinction the Supreme Court has made between “pure speech,” “expres-
sive conduct,” and behavior. This distinction is important because it
helps limit rather than open up what can be said and done in public
space and thereby helps to protect the interests of capital and the state.
By 1939, the U.S. Supreme Court had codified, and presumably
vouchsafed, the right to speak in public spaces. But that did not stop
(and has not stopped) innumerable jurisdictions from hemming in that
right, and often eliminating it altogether. Sometimes the means of elimi-
nation is expressly geographical. Jurisdictions often try to “protect” the
right to speech in public space by assuring that it occurs in such out-of-
the-way places that it has little chance of being heard. Such was the case
at the University of California at Berkeley in the early 1960s. Conflict
over the right to speak became a conflict over who controlled specific
spaces (and indeed over the content of that control). Chapter 3 exam-
ines this episode and some of its consequences.5 The Berkeley Free
Speech Movement did not inaugurate campus activism in the 1960s (its
roots lie more in the civil rights movement), but it did solidify certain
aspects of it, including the implementation of a critique not only of pol-
itics and justice in America (and beyond), but a critique of modern
alienation—a critique that blossomed most fully, perhaps, in the streets
of Paris and Prague during the spring of 1968 (and which Lefebvre was
anticipating with his polemic on the right to the city). In Berkeley, this
critique eventually coalesced into the People’s Park movement, and so
the chapter ends by exploring the roots of and early struggles over Peo-
ple’s Park.
Activists established People’s Park (and baptized it in riot) as what
they hoped would be a small unalienated space within a city as a whole
defined by alienation. As such, it became a refuge for many of the out-
casts of society, including the homeless. By the 1980s, according to
many (including some nearby residents, merchants, and the university),
the sheer number of homeless people in the park had allowed it to
degenerate from a space of freedom to a space of depravity. As a conse-
quence, the university and the city of Berkeley entered into an agree-
ment to redevelop the park and thereby to discourage its “inappropri-
ate” use, especially by homeless people. I argue in Chapter 4 that this
plan, and the riot that it touched off in 1991, illustrate just the sort of
dichotomy in our ideas about public space noted above in the contrast
between the vision of public space advanced by “security experts” and
that advanced by Anthony Vidler. This chapter is an updated and re-
vised version of an article published in 1995 (Mitchell 1995).6 I used
the article, and now the chapter, to raise questions about the kinds of
public spaces available in the contemporary world, and thus the limits
on what sorts of “publics” can be formed. I assess the argument that we
have reached the “end of public space” in the contemporary city and
find that that argument is overly simplistic, since it assumes that public
space already simply existed (rather than was socially produced through
struggle). It is also overly simplistic in that it does not necessarily ap-
preciate how new kinds of spaces have developed, creating new oppor-
tunities for publicity. One of those kinds of public space, of course, is
the space of the electronic media. What I found most interesting as I
revised my argument for this volume was the degree to which I underes-
timated the privatization of, and economic control over, the World
Wide Web, and hence overestimated its potential as a “public space”
and the sorts of democracy that public space helps advance. And yet, at
the same time, I also underestimated electronic media’s role in organiz-
ing political action, and hence the possibility of democratic struggle in
urban public spaces. I try to address this dual underestimation in the
present version.
But my real interest lies with the fate of homeless people in mate-
rial, urban public spaces and the ways that our efforts to eliminate them
from these spaces are leading to a remarkably constricted public sphere
and a rather shriveled notion of rights, a notion that radical workers in
the first half of the century—like those for whom much public forum
doctrine was written—would not much recognize (but also would not
be much surprised by). Chapters 5 and 6 turn to these issues of home-
lessness, public space, and rights in the contemporary city. Chapter 5
returns us, also, to issues of law and its role in affecting social and polit-
ical exclusion by examining the roots and consequences of the imple-
mentation of anti-homeless laws around the country.7 In this chapter I
build on the preceding one to explore how movements to regulate pub-
lic space so as to remove homeless people lead to a specific, and highly
Introduction 9
constricted, sort of public sphere. I do not find this kind of public

sphere to be very attractive. Indeed, to me it speaks of a highly sanitized
city and a fully deracinated politics—a politics that elevates the impor-
tance of aesthetics over the needs of some people simply to survive. My
main point in this chapter is that the new spate of anti-homeless laws
and other “quality of life” initiatives in the contemporary city rely on
fear as a driving force and thus tend toward not only the sort of security
state that the New York experts outline but also the wholesale elimina-
tion of a class of people who have nowhere else to be but in public. In
short, anti-homeless laws undermine the very right to the city.
Chapter 6 continues this analysis but places anti-homeless laws
within two contexts: the “broken windows” theory of policing and ur-
ban policy that has provided their justification; and a recent proposal to
begin zoning public spaces.8 I argue that the current city is one in which
the upper hand of “justice” itself has been firmly taken by the urban
right, forcing the left into arguing, at best, for some awfully paltry
rights—such as the right to sleep on the sidewalk, the right to beg, and
the right to urinate in an alleyway. These are hard rights to either get ex-
cited about winning, or in fact to continue struggling for, no matter how
absolutely central they may be in the current political-economic climate
where the right to housing, to a livelihood, or to decent physical and
mental health care has simply been wiped from the agenda by the stun-
ning success of neoliberalism. My focus on homeless people in public
space—and the attempts to regulate them out of existence—in these
chapters derives from the fact that homelessness has become so proto-
typically the bellwether of urban justice. If anyone needs the right to the
city, surely it is the homeless. But such a right must entail not just the
right to sleep or piss in public but also the right to inhabit, to appropri-
ate, and to control. And it must be affected through a radical wresting of
power and a much fuller democratization of public space. Neoliberal ur-
ban reform calls for the constant increase of urban order. Struggle for
social justice in the city—for the right to the city—must therefore seek
to establish a different kind of order, one built not on the fears of the
bourgeoisie but on the needs of the poorest and most marginalized resi-
dents.
By way of conclusion, therefore, I turn to a brief examination of
how that order should be conceptualized. I do not suggest what it
should be, for any social order will be a product of social practice—the
politics of the street. It is not simply the result of normative argument,
even though any politics of the street, as I hope this volume makes
clear, is always mediated through normative argument. And so, in the
Conclusion, I do suggest that certain forms of normative conceptualiza-
tion of the city and of public space—indeed, certain utopian images of
what the city could or should be—have been and remain crucial in
these politics of the street. While much of my analysis in this volume
may seem pessimistic, the undercurrent of each of the chapters is that
social action—protest, the bringing of lawsuits and other legal actions,
the active taking of space—has been the fulcrum upon which the right
to the city has been leveraged, both in its actual (limited) practice and
in the way it can serve as a beacon for a more open, more just, more
egalitarian society. The undercurrent of radical activism that shapes
space in and against the “regimes of justice” that regulate it should not
be underestimated or dismissed, no matter how often such activism is
either defeated or co-opted. Where I see hope is in exactly those mo-
ments when radical activist movements have arisen—again and again—
to take back the city and to make into something better, movements
that “rethink the exclusions” of the past (as Vidler puts it)—and that
struggle to remake the city in a more open and progressive light.
Remaking the city in an image of openness and justice in the wake
of September 11 will be harder than ever. But it is also more necessary
than ever. One of the common refrains in those shocked days immedi-
ately following the attacks was that “everything has changed.” Yet, as
Bertell Ollman (1990) never tires of reminding us, change is the norm;
what needs to be explained is fixity. If that is the case, then public space,
solid as it is (and its materiality does matter immensely), is ever in a
state of flux, ever subject to reformation. What September 11 has likely
done is deepen tendencies already in place. Those arguing for security
and order over openness and the messy risks of street politics will find
further reasons and means for advancing their agenda. At the same
time, the prodemocracy, anticapitalist movement has been sent scram-
bling, wondering not only what its object is but also whether it can ever
protest in the streets again. But that too is just a deepening of trends, as
the increasingly violent response to protesters in Washington, Quebec,
and Genoa during the first part of 2001 made clear. Finally, there are the
trends in the content and shape of public space itself. We were already
moving toward the sorts of mall-like public spaces that Vidler notes in
his Times article, toward a sort of suburbanization of downtown. Even
the largest of new public spaces, like the soon-to-be-built Downsview
Introduction 11
Park in Toronto, are more and more modeled not on an ethic of interac-
tion but an ethic of seamless, individuated movement and circulation:
public interaction based on the model of commodity and capital flows.9
I make no sure guesses as to what the future holds. But I do have
some sense of—and I hope this volume helps to convey—what the past,
and past struggles over public space, have held. If any of the events,
trends, and struggles I have identified in this book have value, my hope
is that it will be in pointing us both to the degree to which public space
is always an achievement (invariably against very steep odds) and there-
fore to what a just city could be. Lefebvre argues that the right to the city
is “like a cry and a demand.” Now, more than ever, that cry, that de-
mand, must be heard. And it must be put into practice.
NOTES
1. Interestingly, Vidler does not discuss the decentralization schemes spon-

sored by the U.S. government out of fear of nuclear attack during the cold
war. Such schemes—ranging from the development of the interstate system
for defense purposes to the planned deconcentration of industry in De-
troit—have had a profound effect on American cities.
2. Certainly aware that the prominent “new urbanist” James Howard Kunstler
(writing with Nikos Salingaros) had already done so in a widely circulated
essay written within a day of the attack, Vidler suggested that “the ‘new ur-
banism’ movement, with its low-density developments like Seaside or Cele-
bration in Florida, designed to replicate small-town life in pre-modern
America, will no doubt take the opportunity to denounce tall buildings as
inherently mistaken.” A version of the Kunstler and Salingaros essay, “The
End of Tall Buildings,” and some responses to it, can be read at http://
www.peoplesgeography.org/space.htm.
3. The argument I make about rights in Chapter 1 was first laid out in Mitchell
(1997a); the remainder of the chapter is new.
4. Chapter 2 is a significantly revised and updated version of Mitchell
(1996b).
5. This chapter is a revised version of Mitchell (1992). In particular, I fill in
and update some of the historical-geographical detail of just what happened
on the Berkeley campus in the fall of 1964.
6. Among other things, I update the current status of the park. Once again, UC
is considering building dormitories on the land occupied by the park,
which was precisely the plan that set off the 1969 riots in the first place.
7. Chapter 5 is a slightly revised version of Mitchell (1997b).
8. While most of the analysis in this chapter is new, the examination of “bro-
ken windows” and public space zoning revise an argument I put forth in a
recent book chapter (Mitchell 2001b). That chapter asserted that we now
live in a “post-justice” (rather than the more neutral “postmodern”) city, an
argument I do not develop in the present context.
9. Richard Van Deusen and I evaluate the plans for Downsview in a recent
chapter (Mitchell and Van Deusen 2002) of a book (Czerniak 2002) that ex-
plores the design competition for the park. The competition itself, and the
sorts of plans it called forth, is deeply indicative of current corporate public
space ideology.
1
To Go Again to Hyde Park

Public Space, Rights, and Social Justice
Public space engenders fears, fears that derive from the sense of public
space as uncontrolled space, as a space in which civilization is excep-
tionally fragile. The panic over “wilding” in New York City’s Central
Park in the late 1980s (rampaging young men violently terrorizing jog-
gers and other park users for the sheer joy of it), the fright made palpa-
ble by the explosions in Atlanta’s Olympic Park in 1996, and the new-
found fear of public space spurred by the sense of vulnerability
attendant upon the September 11, 2001, terrorist attacks, no less than
the everyday gnawing uneasiness we feel when we step around a
passed-out homeless person on a sidewalk, often convince us that pub-
lic space is the space of anarchy. Such an association of public space
with anarchy is, of course, not new; it is not just a feature of the con-
temporary city, of the current media-encouraged, overweaning concern
about crime, homelessness, and random terrorism that makes public
space seem such an undesirable attribute of the contemporary American
city.
Raymond Williams (1997 [1980], 3–5) reminds us, for example,
that Matthew Arnold’s (1993) famous declaration in Culture and Anar-
chy—that culture represents (or ought to represent) “the best knowl-
edge and thought of the time” (1993, 79)—was made in response to
working people forcing their way into Hyde Park in 1866 to hold an as-
sembly in support of the right to vote. For Arnold, the Hyde Park dem-
onstrators were “a symptom of the general anarchy” (Williams 1997
13
[1980], 6) rather than people struggling for their rights—their right to

assemble, their right to speak, their right to vote. A Hyde Park “rioter,”
according to Arnold, “is just asserting his personal liberty a little, going
where he likes, assembling where he likes, bawling where he likes, hus-
tling as he likes” (Arnold 1993, 88, quoted in Williams 1997 [1980],
6).1 Even more—and even more shrilly—Arnold objected to a working
person’s “right to march where he likes, meet where he likes, enter
where he likes, hoot as he likes, threaten as he likes, smash as he likes.
All this, I say, tends to anarchy” (Arnold 1993, 85, quoted in Williams
1997 [1980], 6).
The proper response, according to Arnold, was repression, the
reigning in of “rights,” and the asserting of firmer control over public
space, for “without order there can be no society; and without society
there can be no human perfection” (Arnold 1993, 181, quoted in Wil-
liams 1997 [1980], 6). Only with order can culture flourish, can cities
be centers of civilization.2 Williams’s point in resurrecting the context of
Arnold’s arguments about culture is important: those rights we take as
“immemorial,” such as the right to assemble in and use public space,
are not only relatively new, they are always hotly contested and only
grudgingly given by those in power. Always hotly contested: rights over
and to public space are never guaranteed once and for all. New strug-
gles emerge, if not only over the right to vote then over the right to live
a sane and peaceful life in the nuclear age, the right to control over gov-
ernment in totalitarian states, or, especially in the “postmodern” cities
of the Western world, the right, in the absence of decent, affordable
housing, simply to live.3 As Williams (1997 [1980], 8) rightly pro-
claims: “it will always be necessary to go again to Hyde Park.”
But, just as it is always necessary “to go again to Hyde Park”—for
people to take control of public space in defiance of the order, control,
and contempt imposed upon them in the name of vouchsafing the
vested interests of the few—so too in response do there arise legions of
Matthew Arnold imitators. “Our own little Arnolds,” Williams (1997
[1980], 8) called them, who claim they are promoting “excellence and
humane values on the one hand; discipline and where necessary repres-
sion on the other.” It is not just spectacular protests, riots, or mass dem-
onstrations that draw out these “little Arnolds.” In the contemporary
United States, these “little Arnolds” have multiplied most rapidly
around the perceived disordering of city streets that has come with the
persistent growth of homelessness, with the growing numbers of the
To Go Again to Hyde Park 15
un- and underemployed, the mentally ill, and the drug-addicted who
have no other recourse than to live their lives in full view of the urban
public. For the homeless “to go to Hyde Park” is often a matter of sur-
vival; for their detractors this “occupation” of public space by homeless
people is seen as a clear affront to the order, dignity, and the civilization
of the city.
In the United States, where the crisis of homelessness is now begin-
ning its third decade, perhaps best known among these “little Arnolds”
is the nationally syndicated newspaper columnist and regular television
talk-show guest George Will. Will frequently uses his newspaper col-
umn to promote the idea that the need to maintain “order” and “civil-
ity” in public space is simply commonsense. Those who work to pro-
mote the rights of homeless people to use public space (as a refuge, as a
place to sleep, as a stopping point, as a place of community and convivi-
ality) are nothing more than “gladiators of liberation”4 engaged in the
“business” of “abstract compassion” (Will 1995, 7B). Over the course of
the homelessness crisis, Will has been impressively consistent. For
nearly two decades, bidding fair to be our era’s Matthew Arnold, our
era’s defender of the sweetness and light that is his version of culture
and civility, he has argued forcefully that the need for “order” trumps
individual or collective liberty (see, e.g., Will 1987, 1995, 1997). Will,
echoing the comments of Anatole France, but with none of the latter’s
piercing irony, is fond of asserting that there simply “can be no right to
sleep on the streets” (Will 1987). The need for a certain kind of collec-
tive order outweighs whatever putative right a homeless person might
have to find a space for living in the public spaces of the city. The right
for the housed residents and visitors of a city to move about without en-
countering any sights that might trouble them outweighs the right of a
homeless person to urinate in a park or alley when there are no public
toilets and she or he has been barred admission to restaurants or other
semipublic places. The need for order, the need to guard against anar-
chy, demands at least that much, according to George Will.
Will is hardly alone in his arguments. Rather, he is supported by
the concentrated energies of such organizations as the Manhattan Insti-
tute (a conservative think tank in New York),5 the American Alliance
for Rights and Responsibilities (a conservative public interest lawyers
guild), nationally based policy and opinion mills like the Heritage
Foundation and the American Enterprise Institute, and big-city mayors
from New York and Cleveland to Los Angeles, San Francisco, and Seat-
tle. When Will argues that there can be no right to sleep on the streets,
Robert Tier (1993, 287) of the American Alliance for Rights and
Responsibilities6 echoes him (and Matthew Arnold) by pointing out
that what is at stake is actually not rights at all, but a question of
choices. He argues that while the struggle for civil rights might once
have had a place in American society (it “helped end American apart-
heid”), hard-won civil rights are now “used to try to trump many legiti-
mate community interests, and to elevate all kinds of individual desires
into assertions of rights. They are now used to defend the colonization
of parks by people wishing to sleep there, to assert the right to sleep and
eat in the public place of one’s choosing, and to beg in any way one
pleases” (emphasis added). The problem of homelessness, according to
Tier, is not a lack of affordable housing or decent public services, but
one of “civility.” Adopting a language of inclusiveness, Tier (1998, 290)
argues that laws restricting homeless people open public space up for
all to enjoy: “those with Armani suits and those with nose rings; elderly
people and gay couples; residents and visitors; rich, middle, and strug-
gling classes” (but presumably not those who have no other place to be
but in the public spaces of the city). The means of assuring such an
open and accessible space, such a civil space, Tier (1998, 290) contin-
ues, is to practice “tough love.” Rather than working toward the con-
struction of a vibrant public housing program that would make housing
affordable; rather than fashioning a decent mental health system that
would make the “care” that Tier advocates better than the disease (see
Winerip 1999); rather than seeking ways to transform an economic sys-
tem that requires high levels of structural unemployment to function,
Tier (1993, 291) argues that we need “the protection of pedestrians
from unwanted solicitations, harassments, and assault.” Government
should promote the interests of some, Tier is suggesting, even if doing
so requires undermining the even more basic rights of others. Tier’s
(1993, 286) “call for public order” to counteract the descent of urban
public space into anarchy shades quickly into repression. No further ev-
idence is needed than New York Mayor Rudy Giuliani’s (in office from
1993 to 2001) order to the police, in November 1999, to arrest any
homeless or other street people who did not “move along” when told to
do so, even if they committed no crime (a practice a federal appellate
court in New York had several years earlier already declared unconstitu-
tional).7
The desire to control the streets and other public spaces of the city
is not limited to issues concerning homeless people. “Our own little

Arnolds” have wider targets. As Mayor Giuliani has made clear, the de-
sire to counteract “anarchy” with repression runs the gamut of public
space uses from rallies and demonstrations (as with the police depart-
ment’s violent response to both the “Million Youth March” and the
Matthew Shepard memorial march in 1998),8 to ridding the streets of
unlicensed peddlers, to a crackdown on public “vice” throughout
Manhattan, to destroying community gardens so as to hand over the
property they occupy into the waiting arms of private developers.9 Of-
ten this assault on homeless people, community gardeners, small-time
peddlers, and young people seeking a place to hang out is couched in
the language of liberty.10 Without order, the argument (from Arnold,
through Will and Tier, to Giuliani) goes, liberty is simply impossible.
And that order must be explicitly geographic: it centers on the control
of the streets and the question of just who has the right to the city.
PUBLIC SPACE AND THE RIGHT TO THE CITY
“The right to the city” is a slogan closely associated with the French
Marxist philosopher Henri Lefebvre. Writing on the 100th anniversary
of the publication of the first volume of Capital and just before the stu-
dent and worker uprising of May 1968, Lefebvre’s short book, Le droit à
la ville, sought to outline what a specifically urban postbourgeois phi-
losophy might be. Much of the book (now published in English as part
of a collection of Writings on Cities: Lefebvre 1996) is highly abstract
and arcane, little more than a set of notes, many of which would later be
expanded upon in Lefebvre’s (1991 [1974]) magnum opus, The Produc-
tion of Space.11 But within this rather arch argument about the content
of philosophy and its relationship to the changing social relations of cit-
ies were a set of aphorisms and a key set of concepts that had immediate
popular resonance. The most important is Lefebvre’s normative argu-
ment that the city is an ouvre—a work in which all its citizens partici-
pate.
There are several issues here that are critical to the development of
the argument about public space and social justice that I will make in
this book. The first is Lefebvre’s insistence on a right to the city.
Lefebvre was deeply attached to the rural countryside, especially the vil-
lage of his birth (Merrifield 2002; Shields 1998), but he shared with
Marx a disdain for the idiocy of rural life. Idiocy in this sense does not
refer to the intelligence of the inhabitants, or even the nature of their
customs, but to the essential privacy—and therefore isolation and ho-
mogeneity—of rural life. In contrast, cities were necessarily public—and
therefore places of social interaction and exchange with people who
were necessarily different. Publicity demands heterogeneity and the
space of the city—with its density and its constant attraction of new im-
migrants—assured a thick fabric of heterogeneity, one in which encoun-
ters with difference were guaranteed. But for the encounter with differ-
ence to really succeed, then, as we will see in a moment, the right to
inhabit the city—by different people and different groups—had always
to be struggled for. This is the second issue. The city is the place where
difference lives. And finally, in the city, different people with different
projects must necessarily struggle with one another over the shape of
the city, the terms of access to the public realm, and even the rights of
citizenship. Out of this struggle the city as a work—as an ouvre, as a col-
lective if not singular project—emerges, and new modes of living, new
modes of inhabiting, are invented.12
But the problem with the bourgeois city, the city in which we really
live, of course, is that this ouvre is alienated, and so not so much a site
of participation as one of expropriation by a dominant class (and set of
economic interests) that is not really interested in making the city a site
for the cohabitation of differences. More and more the spaces of the
modern city are being produced for us rather than by us. People,
Lefebvre argued, have a right to more; they have the right to the ouvre.
Moreover, this right is related to objective needs, needs that any city
should be structured toward meeting: “the need for creative activity, for
the ouvre (not only of products and consumable material goods), the
need for information, symbolism, the imaginary and play” (Lefebvre
1996 [1968], 147). More sharply: “The right to the city manifests itself
as a superior form of rights: right to freedom, to individualization in so-
cialization, to habitat and to inhabit. The right to the ouvre, to participa-
tion and appropriation (clearly distinct from the right to property), are
implied in the right to the city” (Lefebvre 1996 [1968], 174).
When it was published, this call—this cry and demand—for the
right to the city resonated immediately, because Lefebvre was clearly
reflecting, and reflecting on, the growing season of unrest that was the
1960s. From his (often uneasy) links to the Situationist International
and other radical groups in Paris (see Jappé 1999; Merrifield 2002;
Shields 1998), Lefebvre took to heart the argument that current

situations—current geographical spaces—had to be radically trans-
formed if the project of human emancipation was to be advanced. As
the Situationist Guy Debord (1994 [1967], 126) was simultaneously
arguing, “the proletarian revolution is that critique of human geography
whereby individuals and communities must construct places and events
commensurate with the appropriation not just of their labor, but of
their total history” (emphasis in original).
This was not just philosophical positioning or radical posturing by
either Lefebvre or Debord. From the civil rights movement, the Port
Huron Statement of the Students for a Democratic Society, and the
Berkeley Free Speech Movement in the United States, to the stirrings of
the anti-war and anti-imperialism movements that were in fact global in
reach, to the specific complaints of Parisian students fed up with being
molded into uncomplaining “organizational men” (and women), radi-
cal social transformation really seemed possible. And for Lefebvre, this
implied the development (finally) of a fully urban society. The right to
the city was the right “to urban life, to renewed centrality, to places of
encounter and exchange, to life rhythms and time uses, enabling the
full and complete usage of . . . moments and places . . . ” (Lefebvre 1996
[1968], 179). That is to say, the use-value that is the necessary bedrock
of urban life would finally be wrenched free from its domination by
exchange-value. The right to the city implies the right to the uses of city
spaces, the right to inhabit. In turn, and highly germane to the current
American city, where we are reduced to arguing over whether one has
the right to publicly urinate if he or she is homeless (Mitchell 1998a,
1998b), the right to inhabit implies a right to housing (Lefebvre 1996
[1968], 179): a place to sleep, a place to urinate and defecate without
asking someone else’s permission, a place to relax, a place from which
to venture forth. Simply guaranteeing the right to housing may not be
sufficient to guaranteeing a right to the city, but it is a necessary step to-
ward guaranteeing that right.
That is to say, the right to housing is one form of appropriation of
the city, and that is why Lefebvre was at pains to set this off from the
right to property. For property, of course, is the embodiment of alien-
ation, an embodied alienation backed up by violence (Blomley 1998,
2000a; in press; Rose 1994). More accurately, property rights are
necessarily exclusive: the possession of a property right allows its pos-
sessor to exclude unwanted people from access (Blomley 2000b, 651;
MacPherson 1978). And this act of expulsion, this right of property,

Blomley (2000a, 88) notes, frequently involves invoking the power of
the state: “Police can be called to physically remove a trespasser; injunc-
tions prepared, criminal sanctions sought. As such, expulsion is a vio-
lent act. Violence can be explicitly deployed or (more usually) implied.
But such violence has state sanction and is thus legitimate.” This issue
is particularly important in a world where some members of society are
not covered by any property right (Waldron 1991) and so must find a
way to inhabit the city despite the exclusivity of property—either that,
or they must find ways, as with squatting, and with the collective move-
ments of the landless, to undermine the power of property and its state
sanction, to otherwise appropriate and inhabit the city. In the contem-
porary city of homelessness the right to inhabit the city must always be
asserted not within, but against, the rights of property. The right to
housing needs to be dissociated from the right to property and returned
to the right to inhabit.
In the United States and Canada, Lefebvre’s concerns about the
right to inhabit the city were echoed by the radical geographer William
Bunge in his “expeditions” in Detroit and Toronto. Bunge argued
strongly for the rights of resident communities over “foreign invaders”
(such as outside capital, suburban commuters, etc.) and for the rights of
people over machines (such as cars) (Bunge 1971; Bunge and Bordessa
1975; Horvath 1971, 1974; see Merrifield 1995). Radicalized by the De-
troit riots of 1967, and working both among and for community activ-
ists, Bunge focused on the urban life spaces of poor children, particu-
larly African American children. His Fitzgerald: The Geography of a
Revolution (1971) is certainly a cry and a demand—and a brilliant ex-
ploration into the daily geography of life in a disinvested, redlined, vio-
lent capitalist city. The right to inhabit was tenuous, and Bunge exposed
its nature in the American city through a remarkable cartography of rat
bites, broken glass, empty lots, and hit-and-run accidents. The right to
the city, the right to inhabit—such as it was—existed within a web of vi-
olence and deprivation, a web of violence and deprivation that, as
Blomley (2000a) makes clear, is both in part a result of, and also hidden
by, the seeming naturalness of property.13
Central to Bunge’s revolutionary geography, as to Lefebvre’s, was
the right to housing and the right to control over public space. In the
first case, for Bunge and Bordessa (1974), housing was not only desper-
ately needed but also desperately in need of redesign. Public housing in

Detroit and Toronto and other North American cities was designed so as
to be “anti-children.” High-rises, for example, had no space for play—at
least no safe and decent space. Likewise what sufficed as public space in
the inner city—empty lots, busy streets, and barren, windswept, unsu-
pervised playgrounds—represented more a geography of death than of
life. The right to housing, the right to inhabit the city, thus demands
more than just houses and apartments: it demands the redevelopment
of the city in a manner responsive to the needs, desires, and pleasures of
its inhabitants, especially its oppressed inhabitants. Against this, the ac-
tually existing city, the arguments of the “little Arnolds,” with their
overweaning concern for order and “civilization,” with their defenses of
the geography of privilege, begin to seem paltry and mean-spirited at
best. The cry and the demand for the right to the city is the best means
there is to begin to assure what Bunge has called “the geography of
survival.”
“Rights Talk”
If such arguments about rights were of great importance at the time of
the upheavals of 1968 and if they remained important to social move-
ments and activists in the 1970—if, that is, the discourse about rights
was central to those particular “returns to Hyde Park”; then such argu-
ments, such discourses, have in more recent years fallen out of favor
among much of the academic left and to some degree urban social
movements, as well. Complaints about the limits of “rights talk” to pro-
gressive social change are legion and are clearly linked to the rise of a
more “postmodern” discourse in the wake of the defeat of the 1968 up-
risings. The defeat of the left after 1968—perhaps a little later in the
American context, even though the relatively conservative Richard
Nixon was elected president that same year—indicated to many that the
left had for too long hung its hopes on unrealistic (and ontologically
suspect) universalist notions of social justice and emancipation. The
“enlightenment project,” subscribed to by everyone from the signers of
the Declarations of Independence, the Declaration of the Rights of Man,
and the Declaration of Sentiments to Karl Marx and Martin Luther
King, had proven itself to be, many argued, not just easily corruptible
by, but actively complicit in, the rise of fascism, the development of
weapons of mass destruction, and the transformation of people not into

enlightened subjects but passive bearers of techno-bureaucratic ratio-
nality.
Often labeled “postmodernist,” especially after Lyotard’s (1985)
broadside against “metanarratives,”14 such skepticism toward “rights
talk,” like the call for repressive order in public space, is not in fact par-
ticularly new. Indeed, Marx himself was famously skeptical toward the
value of “rights” as an organizing principle of social struggle. After all,
when rights conflict (as they inevitably do) “force decides” (Marx 1987
[1867], 225). But, as David Harvey (1996, 345) correctly notes in re-
gard to this passage, Marx’s point was not at all to abjure completely the
efficacy of rights (see also Harvey 2000). Rather, his point was that
rights remain efficacious only to the degree they are backed by power,
by at least the implicit threat of violence—violence that is at times the
“property” of the state and at other times, and crucially, “extra-legal”
(Harvey 1996, 346, following Derrida 1992, 35).15 To put that another
way, rights are at once a means of organizing power, a means of contest-
ing power, and a means of adjudicating power, and these three roles fre-
quently conflict. The difference between Marx’s skepticism toward
rights (and justice more generally: see Merrifield and Swyngedouw
1996, 1–2) and more postmodern skepticism of rights as a universaliz-
ing or totalizing discourse (Lyotard 1985) is that, while the latter sees
rights’ indeterminacy as their Achilles’ heel, more Marxian (and hence
more modernist) approaches are concerned with the degree to which
rights, despite whatever degree of indeterminacy they may possess, are
still to some degree determinant in social life. “Rights”—to the degree
they are institutionalized and protected within specific social situations,
to the degree that they are and are not backed by the violence and the
power of the state, and to the degree that they protect the interests of
some at the expense of others (despite and because of the universalizing
qualities)—are social relations and hence a means of organizing the ac-
tual social content of justice.16
Yet, the specific arguments against rights as a focus of progressive
social justice and political organizing are important and worth consider-
ing. The most cogent arguments against “rights” as a rallying cry for
progressives are expressed in Mark Tushnet’s (1984) landmark “An Es-
say on Rights.”17 A leftist law scholar, Tushnet argues that “rights talk”
is merely distracting, turning progressive attention away from what re-
ally needs to be done in the interests of social justice: “People need food
and shelter right now, and demanding those needs be satisfied—

whether or not satisfying them can today be persuasively characterized
as enforcing a right—strikes me as more likely to succeed than claiming
that rights to food and shelter must be enforced” (Tushnet 1984, 1394).
This is the case because rights suffer from four flaws that are, according
to Tushnet, fatal. First, rights suffer from instability. That is, they are not
universal and abstract, as the discourse about them often claims, but
rather exist only as products of particular political and social moments.
As these moments change, so too do the content of rights. Second,
rights suffer from indeterminacy. That is, “the language of rights is so
open and indeterminate that opposing parties can use the same lan-
guage to express their positions” (1371). Third, rights suffer from reifi-
cation. That is, they treat real, complex experiences as an instance of the
simple exercise of abstract rights, which “mischaracterizes” (1382) and
devalues those experiences, eliminating what is most important from
any social action—its political efficacy. Finally, and most importantly,
rights suffer from political disutility. That is, rights often protect privi-
lege and domination instead of the oppressed and minorities, as when
commercial speech or the ability of rich donors to buy candidates in an
election is “guaranteed” by the First Amendment right to free speech.
Tushnet (1984, 1386) is forceful on this last point: “It is not just
that rights-talk does not do much good. In the contemporary United
States, it is positively harmful.” This is so, in part, because
18
The contemporary rhetoric of rights speaks primarily to negative ones.
By abstracting from real experiences and reifying the idea of rights, it cre-
ates a sphere of autonomy stripped from any social context and counter-
poses to it a sphere of social life stripped of any content. (Tushnet 1984,
1392–1393)
And equally important, “the predominance of negative rights creates an

ideological barrier to the extension of positive rights in our culture.”
Yet, this is not just a matter of progressives needing to do a better job of
promoting positive rights, for, as already noted, Tushnet argues that fo-
cusing political action on such a goal would detract from the struggle
for the real needs at hand (such as food and shelter for the hungry and
homeless).
In the context of the radical restructuring of both capital and the
state that has quickened since the structural crises that came quickly on
the heels of the 1968 uprisings, arguments such as those by Tushnet

need careful attention. Such arguments raise precisely the sorts of ques-
tions that ought to be addressed by those who would fight for a more
just world in the context of a reordered political, economic, and social
life. In an argument against rights, targeted at a popular audience and
anticipating much of the transformed discourse about class and eco-
nomic power that crystallized in the anti-World Trade Organization
(WTO) protests in Seattle at the end of 1999, Richard Rorty (1996, 15)
asserts that the most serious problems facing the United States (and the
rest of the world) center on the “power of the rich over the poor” and
that “[a]s Karl Marx pointed out, the history of the modern age is the
history of class warfare, and in America today, it is a war that the rich
are winning, the poor are losing, and the left, for the most part, is stand-
ing by.” The left is standing by, Rorty argues, because it has brandished a
particularly weak weapon against the rich: rights. Rorty argues that
“rights” are weak because they do not directly attack “economic injus-
tice.” Instead, they are, at least in the contemporary United States, con-
cerned mostly with issues of cultural domination.19 Therefore, Rorty
suggests that both economic and cultural injustice is better attacked
with the “robust, practical, and concrete language” of “moral discourse”
(Rorty, 1996, 16).20
Like Rorty, Tushnet (1984, 1402) hangs his argument on the (hard
to dispute) claim that “[t]hings on the whole are terrible” since the
United States (or, more accurately, capital coordinated through the po-
litical and military might of the United States) has created “one of the
great empires in world history [where] life in the metropolis goes on as
well as it does only because the metropolis exploits the provinces.”
Under such conditions (conditions that we now have grown accus-
tomed to signifying with the deceptively neutral name “globalization”),
“rights talk” seems decidedly secondary. There are far more important
and immediate battles to be fought: the battle for housing, for income
redistribution, for worker power, against corporate colonization of ev-
ery aspect of our lives, against racism, against sexism, and against the
homophobia that rules everyday life.
Yet, for all the strength of Tushnet’s (and Rorty’s) analysis, some-
thing is lacking—something that the current restructuring of capital
and the state makes so readily apparent that it is hard to see how such
perceptive analysts can so easily sidestep it. And that is simply this: at a
time when the globalization of capital is aided and abetted every step of
the way by what Stuart Hall (1988) famously called (in the British case)
“authoritarian populism”;21 when, under the name of free trade and un-
fettered markets, capital is free to systematically crush any vestige of so-
cial life not yet under its sway, free to create a world in which the
immiserization of the many so as to enrich the very few is packaged as
inherently just (and liberatory); then those who seek to create a better
world have few more powerful tools than precisely the language of
rights, no matter how imperfect that language may be (Blomley 1994b).22
Rights establish an important ideal against which the behavior of the
state, capital, and other powerful actors must be measured—and held
accountable. They provide an institutionalized framework, no matter
how incomplete, within which the goals of social struggle can not only
be organized but also attained. As Iris Marion Young (1990, 25) argues,
“rights are relationships not things; they are institutionally defined
rules specifying what people can do in relation to one another. Rights
refer to doing more than to having, to social relations that enable or
constrain action.”
To put that another way, and to generalize the point, there is a cen-
tral contradiction that all social movements must face, a contradiction
that must be faced squarely even though it is hard to see just how it can
be overcome. On the one hand, one of the greatest impediments to free-
dom, to a just social life, to the kind of world Rorty and Tushnet would
like us to struggle for, is the state itself. Tushnet is correct in arguing
that rights codified through the institutions of the state can be enor-
mously destructive. They can suffer greatly from disutility; the wrong
interests can be protected by rights. Moreover, the (capitalist) state is so
fully complicit with the program of capital that it seems hopelessly uto-
pian to think that it could ever be extricated and turned into a force of
liberation.23 That is precisely why so many on the left are willing to
abandon state-centered approaches to social change (calling these ap-
proaches, rather than the state and capital, “totalizing”) and substitute
for them either the stern moralism that Rorty (1996) advocates, the cul-
tural politics that he and others critique (Gitlin 1995; Tomasky 1995;
see Kelley 1998), or the reliance on extraparliamentary, extrajudicial
politics that Tushnet proposes in place of “rights-talk.”
On the other hand, the (liberal) state24 has proved itself—precisely
through the institutionalization of rights—to be a key protector of the
weak. These protections have not been freely given; they have been
won, wrested through moralism, direct action, cultural politics, and
class struggle, from the state and from those it “naturally” protects. Im-
portantly, these fragile victories, incomplete as they are, counterproduc-
tive as they may sometimes be, are themselves protected only through
their institutionalization in the state. To take only one example, Meghan
Cope (1997) has argued persuasively that for women and children the
state—the U.S. federal state at that—has been, in many ways, the best
friend that they have had. The creation of a progressively democratic
state (or even a first step toward that old dream of seeing the state
wither away) must itself, in good part, begin by strengthening the state—
especially in an era of “globalization.” Put another way, the state is an
essential player in contemporary capitalism and will remain so, no mat-
ter how much current political trends promote the appearance of its de-
mise after Keynesianism (Meszeros 1995), the defeats of 1968, and the
economic crises of the 1970s. To abandon the state to the forces of capi-
tal, or to those so efficient in organizing authoritarian populism (and
political quiescence [Singer 1999]) through the state, is shortsighted in
the extreme. “Rights talk” is one means by which the struggle to “cap-
ture” the state by progressives can be organized. “Rights” are one means
by which progressive social policies can be instituted. Rights and rights
talk, as the conservative legal scholar Robert Tier implicitly recognizes,
are simply too important in the contemporary world to abandon in
favor of some even more nebulous notion of morality (Rorty) or unin-
stitutionalized social struggle (Tushnet).25
What Rights Do
To make such a claim raises the obvious question; Just how do “rights”
and “rights talk” do what I claim they do? For, while it is commonplace,
it is also inaccurate, to assert that “discourse” produces things (like the
social justice hopefully attendant upon socially progressive policies).
Yet, this is not to say that discourses have no power. Quite the contrary,
discourse helps set the context within which social practices occur and
are given meaning. This power lies in the ability of words organized as
discourse to instruct. Take the example of legal discourse. Laws and the
discourse surrounding them can seemingly do all sorts of things. As
laws, they can grant freedom or deal in oppression; they can order and
regulate; or they can lead to mayhem. Yet, in reality, of course, it is not
at all the legal words that do this. Words alone do not prevent striking
workers in the United States from engaging in secondary boycotts;
words alone do not prevent (or allow) women to attend military school
or engage in combat; words alone do not enable a corporation to take
subsidies to locate its plants in certain communities—only to pull up its
stakes a few years later, leaving in its wake a path of destruction. Rather,
it is police power—the state-sanctioned threat of violence or other
penalties—that permits these outcomes. At most, words can instruct
and perhaps provide the discursive justification for the restraint or use
of police power; they can help define other institutions of power that
may or may not provide a check on the police power of the state. In this
sense, words can provide a valuable tool for restraining power or for
justifying it in particular ways. That is precisely what “rights” do: they
provide a set of instructions about the use of power. But they do so by
becoming institutionalized—that is, by becoming practices backed up by
force (as Marx recognized).
Tushnet (1984, 1384) would counter that such an argument fails
because of the indeterminacy of rights: “To say that rights are particu-
larly useful is to say that they do something; yet to say that they are in-
determinate is to say that one cannot know whether a claim of right will
do anything.” But Tushnet here ignores the way that a claim of right, no
matter how contested, establishes a framework within which power oper-
ates. It matters less that power may breach this framework as often as
honor it, because it is precisely in the breach that the political utility of
rights talk does come to the fore. The abrogation of rights becomes a fo-
cus of political action, of social struggle. The argument (such as
Tushnet would make) that claims of right cannot be determined within
the discourse of rights is absolutely correct. The adjudication of rights,
as Marx argued, is a function of force, a result of political action. It can-
not be otherwise. But that does not thereby diminish the power of rights
talk, as Tushnet claims it does.
For example, how would Tushnet, with his example of the need for
food and shelter as pressing areas for social struggle, react to the wide-
spread adoption of anti-homeless laws around the country (see Chap-
ters 5 and 6)? Surely he would agree with Jeremy Waldron’s (1991, 296)
startlingly obvious assertion in this context that “no one is free to per-
form an action unless there is somewhere he is free to perform it.” No
matter how appalling it might be to argue and struggle in favor of the
right to sleep on the streets or urinate in an alley, it is even more appall-
ing, given the current ruthless rate at which homelessness is produced,
to argue that homeless people should not have that right. That is, to the
degree that we deny homeless people the right to sleep on sidewalks, we

reinforce the “right” of the housed never to have to see the results of the
society they are (at least partially) culpable in making. By denying the
right to sleep, defecate, eat or relax somewhere, Waldron (1991) con-
cludes, contemporary anti-homeless laws—predicated as they are on
the rights of property—simply deny homeless people the right to be at
all. In this instance, then, the denial that rights do anything (even if not
autonomously) is genocidal. Likewise, absent the institutional power
that rights talk helps to organize and constrain, it is hard to see how
Rorty’s call for compassion and moral persuasion will have any pur-
chase against anti-homeless laws that take as their basis the twin
“commonsense” notions that property rights must be protected and that
there is no reason why people should urinate and sleep in parks and on
streets.26
More directly to the point, moral arguments and compassion create
no institutions that can protect moral and compassionate argument—at
least not in a world still structured by states and their apparatuses.
Rights, by contrast, have the force—physical, if partial—of law. What
would happen if, in a few years and in the continued absence of enu-
merated rights to housing and livelihood, American society no longer
produced homelessness quite so efficiently—that is, if homelessness be-
came, because of reduced numbers, no longer quite so pressing a matter
in most cities? How would the interests of those who remained home-
less be protected when the attention of activists and advocates turned
elsewhere, when moral and compassionate arguments were no longer
quite so prevalent? Indeed, by what mechanisms can moral arguments
protect a minority against a malicious (or simply selfish) majority?
It is helpful in this regard to understand the institutionalization of
rights (or more generally the establishment of laws) as a moment in the
production of space—especially material, physical space, not only the
sort of metaphorical space that has been the currency of progressive
theoretical development in recent years. While “production of space”
theories are now quite complex,27 it is in their barest outlines that one
may best appreciate their utility for social movements seeking to create
a just world. Lefebvre (1991) has argued that with the rise of capitalism
came the hegemony of “abstract space.” As labor was “abstracted” from
social life (and as abstract labor came to dominate the social relations of
production) under capitalism, abstract space was produced. This ab-
stract space is different from “absolute space” (understood as a content-
less container) because abstract space was and is socially produced

under particular universalizing social relations.28 As this abstract space
becomes predominant, it becomes the site for the radical transformation
of social life, establishing social life as merely a series of abstract, highly
mediated, social relations (cf. Lukács 1968). Abstract space is the ar-
rangement of space that makes capitalism possible, even as the social re-
lations of capitalism make abstract space possible in the first place.
Lefebvre (1991, 55) thus argues that “it is struggle alone which prevents
abstract space from taking over the whole planet and papering over all
differences.”
The struggle for rights and for just laws is one aspect of this strug-
gle to resist the hegemony of abstract space and to produce what
Lefebvre calls “differentiated space.” The struggle for rights is a deter-
minate of the actual social content of the dialectic between abstract and
differentiated space; the struggle for rights produces space. The rules for
how capital moves across boundaries, for how firms develop in loca-
tions, for how public space is created, used, and transformed within cit-
ies are all, in part, rules of law, rules of right. Social action is structured
through law, and social action creates abstract or differentiated spaces in
proportion to the power possessed by each side in a struggle. So social
action—including oppositional work by social movements—always op-
erates simultaneously to influence the production of law and the pro-
duction of space. As Blomley (1994a, 46) concludes, “law is, as it were,
produced . . . in spaces; those spaces in turn are partly constituted by le-
gal norms.” The struggle for rights—for example, the right to sleep un-
molested in a city park if you are homeless—becomes, as we will see in
Chapters 3 through 6, an important, if still limited, tool in the produc-
tion of space against powerful abstracting forces. But rights talk is more
than a tool; if successful (and thus inscribed in law and policy), it pro-
vides institutional support for produced differentiated space to be main-
tained against the forces of abstraction that seek to destroy it. Rights
themselves, therefore, are part of the process of producing space.
Lefebvre (1991, 54) stakes out the end point of this argument: “A revo-
lution that does not produce a new space has not realized its full poten-
tial; indeed it has failed in that it has not changed life itself, but has
merely changed ideological superstructures, institutions or political ap-
paratuses.” The “cry and demand” for rights is a means for producing
the right to the city—it is “that critique of human geography” Debord
called for.
Space, Rights, and the Content of Justice
Any “critique of human geography” must be closely tied to normative

philosophies of social justice. Without forging such a link, all the argu-
ments by “little Arnolds” about order, freedom, and privilege will re-
main unchallenged in their claims to common sense. The critique of
human geography, in the eyes of these “little Arnolds,” is seen as a call
for or an excuse for disorder, and thus dismissible. Linking social cri-
tique to social justice makes the invocation of “order” by those with ma-
terial and property interests to protect less tenable: it can be shown to
be the particular ideological move that it is. It shows that in fact the
question is not one of order versus disorder but rather one of what sort
of order is to be developed and advanced—a progressive one or a re-
pressive and oppressive one.
The relationship between geography—the critique of human
geography—and justice has been of keen theoretical, philosophical, and
political interest at least since the early 1970s, with the publication of
Bunge’s (1971) report on the Fitzgerald neighborhood of Detroit and
David Harvey’s (1973) important analysis of liberal and Marxist urban
theory, Social Justice and the City. In his book Geography and Social Jus-
tice, geographer David Smith (1994b) has since provided a very useful
review of prominent philosophies of social justice that explicitly links
them to contemporary geographical social theory. Reviewing both
traditional (egalitarian, utilitarian, libertarian, contractarian) and more
radical (Marxian, communitarian, feminist) theories of justice, Smith
develops a sophisticated interpretation of egalitarian and distributive
approaches to justice that takes space, place, and territory seriously. His
goal is to illuminate the “structures responsible for inequality” (153)
and to show that because such structures fundamentally concern ques-
tions of distribution (among other things) they are inherently geo-
graphic. To put that another way, Smith argues that exposing the geog-
raphy of injustice is essential to developing social structures that are
more just. Attention to geography forces a broadening of theories of in-
justice: it illustrates the ways that systems and structures of inequality
become entrenched and reproduced in the actually existing world, and
thus necessarily turns attention to questions broader than just distribu-
tion. Or rather, attention to just distribution within its geographical
contexts demands struggle toward the transformation of those geo-
graphical contexts. Smith thus provides a sophisticated account of what

is often called the distributive paradigm of social justice.
For Iris Marion Young (1990), reliance on a philosophy of distribu-
tive justice places such authors as Smith squarely in the mainstream of
political philosophy.29 “Contemporary philosophical theories of jus-
tice,” according to Young (1990, 15), “tend to restrict the meaning of
justice to the morally proper distribution of benefits and burdens
among society’s members.” Moreover, such theories (not necessarily ex-
cepting Smith’s) also tend to “stand independent of a given social con-
text” while still claiming to “measure its justice” (Young 1990, 5). To do
so, Young (1990, 7 passim) argues, contemporary theories of justice as-
sume, within any given space, a homogeneous, undifferentiated, univer-
sal public, a public that shares like desires and needs. As soon as the
universality and homogeneity of the public is revealed to be a myth,
theories of distributive justice are exposed as inadequate to the task of
rectifying real, socially situated injustice.
To make this argument, Young (1990) does not dismiss (as does
Lyotard 1985) the contention that some universal normative claims can
and should be made. For example, she suggests that “all reasonable per-
sons share” the assumption that “basic equality in life situation for all
persons is a moral value; that there are deep injustices in our society
that can be rectified only by basic institutional changes; that [various
social] groups . . . are oppressed; [and] that structures of domination
wrongfully pervade our society” and can be dismantled (Young 1990,
14). Young’s argument, in short, is that distributive justice (given the
above universal assumptions) is vitally necessary30; but that it is not
sufficient. Rather, the content of social justice must include, in addition
to a just distribution of things, a framework that allows full, effective
participation in decision-making by oppressed groups (35) and a frontal
attack on various forms of oppression (48–63). “Justice,” Young (1990,
37) argues, “is not identical with the good life as such. Rather social jus-
tice concerns the degree to which a society contains and supports the
institutional conditions necessary for the realization” of two “values”
essential to the construction of “the good life”: “1) developing and exer-
cising one’s capacities and expressing one’s experience, and 2) partici-
pating in determining one’s action and the conditions of one’s action”
(Young 1990, 37, references deleted). As Young (1990, 37) recognizes,
these are in fact universal values and they require their promotion for
“everyone”; but they are also values that demand a careful attention to
difference, for against them stand “two social conditions that define in-
justice: oppression, the institutional constraint on self-development,
and domination, the institutional constraint on self-determination.”
Both oppression and domination are exercised through difference: it is
difference that is oppressed and it is differently situated actors who
dominate. Autonomy—the freedom to be who one is—requires not just
the recognition of difference but also its social promotion.
In summary, for Young (1990) autonomy requires not simply a just
distribution of goods and opportunities but social—or better, social-
ized—control over the means of distribution. And this socialized con-
trol has to be connected with elaborate, normative, universalizing, and
institutional frameworks that promote autonomy and difference, both
of individuals and of groups. Frameworks of rights, in other words, are
crucial to the development of a social justice that moves beyond distri-
bution and begins to recognize the struggle against oppression and in
favor of autonomy (25). However, the ways in which we conceptualize
“rights” needs to be transformed (96–97). Young argues, rightly, that
within the discourse of law the “ ‘ethic of rights’ corresponds poorly to
the social relations typical of family and personal life” because such an
ethic is based on a model of civic social relations that takes social de-
tachment rather than social engagement as its basis.31 Critiquing the
Habermasian ideal of a detached “public sphere” and drawing on a
range of feminist arguments, Young (1990, 97) notes that the “ideal of
impartial moral reason” (which stands behind much rights talk) “corre-
sponds to the Enlightenment ideal of the public realm of politics as at-
taining the universality of a general will that leaves difference, particu-
larity, and the body behind in the private realms of family and civil
society.”
Such a conception of rights—and with it, such a conception of dis-
passionate social justice—relies on what Young (1990, 98) calls a “logic
of identity” that “denies or represses difference.” This is because “the
logic of identity tends to conceptualize entities in terms of substance
rather than process or relation.” But a more dialectical notion of entities
(see Ollman 1990; Harvey 1996) can be adopted, struggled for, and de-
fended. Doing so would mean that the “logic of identity” has to be re-
placed with a “logic of representation.” A “logic of representation” cen-
ters on the right of groups and individuals to make their desires and
needs known, to represent themselves to others and to the state—even

if through struggle—as legitimate claimants to public considerations.
Such a logic requires the acceptance of a (near) universal and positive
right of representation. Yet, as with any other right, such a right cannot
be guaranteed (“accepted”) in the abstract—rather, it is something al-
ways to struggle toward. In this struggle, the development—or often the
radical claiming—of a space for representation, a place in which groups
and individuals can make themselves visible, is crucial. While it is no
doubt true that the work of citizenship requires a multitude of spaces,
from the most private to the most public, at the same time public spaces
are decisive, for it is here that the desires and needs of individuals and
groups can be seen, and therefore recognized, resisted, or (not at all par-
adoxically for thoroughly materialist rather than idealist normative so-
cial practices) wiped out. The logic of representation demands the con-
struction—or, better, the social production—of certain (though not
necessarily predetermined) kinds of public space.
Representation and Public Space

Representation, whether of oneself or of a group, demands space. While
it is true that “human beings have no choice but to occupy a space: they
just do,” as David Smith (1994b, 151) puts it, it does not follow that
such a space allows for the full, adequate, and self-directed representa-
tion of human beings either to themselves or to others. Jail and school,
to take two obvious examples, are controlled environments where the
needs, desires, rights, and hence ability to self-represent are not only
limited but often denied altogether. But one does not have to focus on
such “total institutions” (as Foucault has called them) to see that the
ability for (or right of) representation is continually frustrated everyday
for innumerable individuals and groups. While occupying some place
or space is vitally necessary to life, it is not necessarily guaranteed as a
right.32 Rather, private property rights hedge in space, bound it off, and
restrict its usage. As Smith (1994b, 42) argues, “the right to own land
differs from other commonly enunciated rights, in that it concerns the
appropriation of the scarce material world, and can impinge on the
rights of others to meet such vital needs as food and shelter.” Moreover,
private property rights also potentially trump what Smith (1994b, 43)
calls membership rights but which in the American context might be
more commonly understood as the right to assembly—that is, those

rights that make possible the formation of political communities, that
make possible political representation.
In a world defined by private property, then, public space (as the
space for representation) takes on exceptional importance. At the level
of basic needs, as Waldron (1991) argues, in a society where all prop-
erty is private, those who own none (or whose interests aren’t otherwise
protected by a right to access to private property) simply cannot be, be-
cause they would have no place to be.33 At a less immediate but still vi-
tal level, in a world defined by private property, the formation of a public
sphere that is at all robust and inclusive of a variety of different publics
is exceedingly difficult.
Much ink has been spilled arguing the merits of Habermas’s (1989)
notion of the public sphere, and especially the limited historical geogra-
phy out of which he saw it arising (cf. Calhoun 1989). As numerous
critics have pointed out, Habermas’s singular and normative theory of
the universal public sphere is handicapped from the beginning because
it attempts to universalize a model of discourse that developed in highly
constrained, exclusive (male, bourgeois, white) spaces, such as the
18th-century coffee house. Nancy Fraser (1990) argues that the notion
of the singular universal public sphere needs to be replaced with a the-
ory of multiple, contending, often mutually exclusive public spheres.
Just as important is the need to provide a more realistic geographical ba-
sis to the very notion of the “public sphere.”
Implicit in much theorizing about the public sphere is the assump-
tion that the provision of an adequate space (or in some renderings, an
adequate technology) will perforce create a vibrant public sphere.34 The
proliferation of and perhaps democratic control over places to meet,
gather, and interact (whether these places be town squares, electronic
communities, televisions chat shows, or “the media”) are often seen as
sufficient to the creation of a public sphere. The erosion of such places
(and their replacement by privately controlled spaces and means of
communication) is likewise often argued to be crucial to the closing
down of the public sphere. The images—or ideals—of the public sphere
and its relationship to space are important and in their normative force
often drive much political organizing and action. And yet these argu-
ments are limited to the degree that they assume that the construction
of either singular or multiple public spheres is an issue of planning, and
that such planning is—or could be—sufficient to the promotion of po-
litical discourse. The planning and provision of public spaces will lead,
the argument often goes, to the ability of various groups to represent
themselves.
And yet, as careful analyses of the community network movement
in the United States (such as that by Michael Longan 2000) show, even
the most well designed spaces for interaction (in this case the electronic
space of the internet) often lead to a remarkably limited and ineffectual
public discourse. Indeed, Longan (2000) found that the most effective
arenas of public discourse arose around specific issues and specific
needs. That is to say, political debate developed not because it could, but
because it had to—and in the process often the least likely sites for polit-
ical representations became the most important.
That is to say, for all the importance and power of recent “end of
public space” arguments (which is great, as I will discuss in Chapter 4),
what makes a space public—a space in which the cry and demand for
the right to the city can be seen and heard—is often not its preordained
“publicness.” Rather, it is when, to fulfill a pressing need, some group
or another takes space and through its actions makes it public. The very
act of representing one’s group (or to some extent one’s self) to a larger
public creates a space for representation. Representation both demands
space and creates space.
But it rarely does so under conditions of its own choosing. And
so here the desires of other groups, other individuals, other classes,
together with the violent power of the state, laws about property, and
the current jurisprudence on rights all have a role to play in stymie-
ing, channeling, or promoting the “taking” and “making” of public
space and the claim to representation. The move again and again to
Hyde Park—or to create new Hyde Parks—meets deep opposition,
not only from innumerable “little Arnolds” but also from riot police
wielding tear gas, corporate lawyers wielding writs and subpoenas,
and “rent-a-cops” wielding revolvers (and licensed to use them). So
too is “Hyde Park” reclaimed by the almost inevitable attrition en-
demic to any militant or long-term occupation—whether that occupa-
tion is one of homeless people creating a communal shantytown on
city property or the occupation of generations of activists seeking to
retain the right to protest in (or just to use) spaces subject to the im-
perial designs of corporate capital and its allies in planning and land-
use departments.
The production of public space—the means through which the cry
and demand of the right to the city is made possible—is thus always a
dialectic between the “end of public space” and its beginning. This dia-
lectic is both fundamental to and a product of the struggle for rights in
and to the city. It is both fundamental to and a product of social justice
(which thus cannot be universal except to the degree it relates to the
particular and the spatial—particular struggles for rights and particular
struggles over and for public space). The purpose of the chapters that
follow is to explore—in historical geographical detail as well as at the
level of normative theory—just this dialectic, and to show how it struc-
tures the “right to the city” as it actually exists and as various activists
and social groups have struggled to make it be.
NOTES
1. The full sentence reads: “The rough has not quite found his groove and
settled down into his work, and so he is just asserting his personal liberty a
little, going where he likes, assembling where he likes, bawling as he likes,
hustling as he likes” (Arnold 1993, 88). The invocation of settling down
into one’s appointed work is telling. But more important, perhaps, is that
Arnold makes his argument as a defense of the State (the capitalization is
his), which he sees as both the guarantor of order and the (perhaps imper-
fect) expression of perfection. This sets Arnold apart from many of the
contemporary “little Arnolds” writing in America whom we shall shortly
meet.
2. My argument throughout the course of this book will not be that “order” in
and of itself is bad; rather, the issue is what kind of order, and protecting
whose interests, is to be developed and advanced. Indeed, I will argue, es-
pecially in the Conclusion, that “order” is as vitally necessary to the pro-
gressive city as it is to the oppressive or repressive one.
3. In late 1999, responding to a highly publicized assault that was wrongly
linked to a homeless street person, Mayor Rudy Giuliani of New York reit-
erated his (and many others’) staunch belief that there simply is “no right
to live on the streets.” Giuliani put it starkly: “Streets do not exist in civi-
lized societies for the purpose of sleeping there. Bedrooms are for sleeping
in” (Bumiller 1999, A1)—which, of course, is fine if you have one. For
those who do not, Giuliani announced a new program to arrest those
sleeping on the streets if they did not “move on” when ordered to do so by
the police. Simultaneously, Giuliani announced that shelter beds would be
conditional on employment. Most of the homeless, under this policy, were
caught in a quite sharp “Catch-22.” As the New York Times put it in an
analysis, “many New Yorkers seemed puzzled by a policy that would throw
homeless people out of shelters and into the streets, and yet arrest them for
being there if they would not go to a shelter” (Bernstein 1999, 1). Indeed.
4. Here Will is quoting the editor of the conservative American Enterprise
magazine, Karl Zinsmeister, who argues that those who promote homeless
people’s rights to public space “have no regular experience of neighbor-
hood life as it must be endured by low-income city dwellers” (quoted in
Will 1995). Neither Zinsmeister nor Will provide any evidence for this al-
legation.
5. The Manhattan Institute has produced a compendium of polemic from the
urban right (Magnet 2000), which fairly clearly outlines the current “little
Arnold” position.
6. The AARR is a branch of something called the “Communitarian Network,”
both of which are dedicated to litigation that they hope will “restore the
spirit of community in the United States” by striking “a balance between
extreme rights claims and those who would sacrifice civil liberties as a
means to an end” (Golden 1998, 552). Tier is now the President of the
Center for Livable Cities, “a national non-profit organization that assists
local governments, downtown associations, and citizen anti-crime groups
on urban crime and disorder issues” (Tier 1998, 255n).
7. See note 3, above.
8. The “Million Youth March,” held in Harlem on September 5, 1998, was or-
ganized by Khalil Muhammad, a leader of the New Black Panther Party and
a former leader of the Nation of Islam (who had been expelled by Louis
Farrakhan for being too bigoted). The rally was required, by order of
Mayor Giuliani, to end at 4 P.M. When it went overtime by a few minutes,
riot police stormed the stage, sparking a riot. A month and a half later,
some 4,000 New Yorkers gathered to march through Manhattan in memory
of the brutally murdered gay University of Wyoming student Matthew
Shepard. Police reacted by chasing marchers through the streets with
nightsticks.
9. Giuliani’s anti-community gardens campaign has received a huge amount
of attention, and yet there is not yet a single good source for understanding
its history. What is clear, however, is the degree to which, prior to Septem-
ber 11, 2001, his alienation of much of his political base through this cam-
paign had undermined his support and popularity. The problem that faced
Giuliani when he turned against the gardeners (largely, it seems, out of an
ideological commitment to private property and a visceral dislike of popu-
list movements that had been successful at implementing what he desired
to implement through more authoritarian means) was that he was leading
an assault against one of the things that New Yorkers most liked rather
than disliked about their city.
10. Reviews of Giuliani’s quality-of-life policies and practices may be found in
N. Smith (1996, 1998).
11. For a discussion of the relationship between these two books, and for an
argument that Lefebvre’s deeply abstract arguments were in part a function

of his style of work, which relied heavily on dictation, see Shields (1998).
The best examination of the development of a specifically urban Marxism
in Lefebvre’s work is now to be found in the chapter on Lefebvre in Andy
Merrifield’s (2002) wonderful new book MetroMarxism.
12. There are, of course, more basic arguments as to why the city must be at
the heart (but not at all the exclusive focus) of any struggle for a progres-
sive, socially just world. Among these are the simple fact that most of the
world’s population is now urban, that cities have become the command
and control centers of the global economy and of the practices and policies
that are transforming the global environment, and that, in fact, increased
rather than decreased urbanization will have to be at the heart of any move
toward sustainability under continued population growth: cities are every
bit as much a solution as they are a problem.
13. The Detroit Geographical Expedition and its offshoots in Toronto and else-
where marked an important moment in the rise and fall of an activist
community-centered geography that saw its task as one of helping to de-
velop the theories and skills necessary for radical, bottom-up social trans-
formation. The impressive growth of social theory in the past two decades
has come at the cost of abandoning this project, no matter how much radi-
cal geographers have retained the language of activism. Merrifield’s (1995)
examination of Bunge’s geographical expeditions does a superb job of both
recovering the history of the expedition (including its flaws) and charting
this shift in activist geography.
14. Lyotard’s (1985) broadside argues that “even the emancipation of human-
ity” (60) is disqualified as a grounds for universal discourse, and yet it con-
cludes with an explicit discussion of justice “as a value [that] is neither
outmoded nor suspect” (66).
15. The best discussions of the geography of rights are authored by Nicholas
Blomley (1994a, 1994b).
16. All this is to say (to put it bluntly), “rights” must be at the heart of any
Marxist and socialist project of urban transformation, even while the limits
of rights, and the need to continually struggle over them, must constantly
be acknowledged.
17. This and the next section are revised versions of arguments I first made in
Mitchell (1997a).
18. Negative rights are expressed as a prohibition on some aspect of state
power; for example, a prohibition on the state’s interfering in people’s
speech acts is negative rather than positive because it defines the limits of
state action rather than the extent of people’s ability to speak.
19. His primary example, reflecting a set of court cases of the time, was the as-
sault on the rights of gays and lesbians, and in this context he argues that
such an assault will not be stopped by justices discovering “a hitherto in-
visible right to sodomy” but because the heterosexual majority will be per-
suaded that “tormenting homosexuals for no better reason than to give it-
self the sadistic pleasure of humiliating a group designated as inferior” is
bad. Of course, such a remedy says nothing about how to redress griev-
ances by those gays who continue to be “tormented” (or even just discrim-
inated against) even after the majority has come around.
20. Those of us not well-versed in philosophy might be led to wonder why
“moral discourse” is more practical and concrete than the language (and
institutionalization) of rights, but, unfortunately, Rorty does not provide
an answer. Nor does he provide an answer as to why progressives cannot
fight for economic as well as cultural rights.
21. Authoritarian populism probably better describes the ruling ideology of
Thatcher/Reagan than Clinton/Blair. The zeitgeist of the 1990s might be
better characterized as “therapeutic authoritarianism.” Whatever populist
energies Thatcher and Reagan may have galvanized were dissipated by
Clinton and Blair, who both so readily “felt our pain” and then increased it
by ending “welfare as we know it” and instituting rather draconian disci-
plinary compulsive-employment laws in its place. The authoritarianism re-
mains, but now it is made palatable by adding to it a warmed-over mixture
of 1970s-style psychobabble and ’80s-style “tough love.” As I write, in the
wake of September 11, 2001, in the midst of the U.S. and British war
against Afghanistan, and as the anthrax scare continues to remain un-
solved, both President George Bush and Prime Minister Tony Blair seem
intent—with their stepped-up police powers for unwarranted searches,
proposals to read private e-mails and listen in on attorney–client conversa-
tions, and mass detentions of the uncharged and unarraigned—to create a
new fascism, a sort of (nominally) democratic, authoritarian totalitarian-
ism. It is no accident that this is being put into place through a wholesale
attack on rights—the right to privacy, to be free from unreasonable search
and seizure, to a speedy trial and to confront your accusers, and so forth.
22. Blomley (1994b) makes a compelling argument for the importance of
“rights-talk”—an argument that has been a deep inspiration for my own
thinking on the subject. Following Patricia Williams (1991), Blomley
rightly notes that the leftist critique of rights, which has been conducted
largely by whites, is quite condescending when the everyday experience
and ongoing struggles of African Americans is considered. For African
Americans, as for other people of color, many women, the homeless, and
sexual minorities, and now Arab and Islamic peoples, everyday experience
features the routine denial of formally recognized rights. The struggle for
the effective protection of such rights, therefore, is central to progressive
organizing in these communities. Harvey (2000) develops this argument in
specific reference to the important promissory power of the United Na-
tions Declaration of Human Rights.
23. As Daniel Singer (1999) has made clear, ideologues for capitalism have
used this sense of the impossibility of change to great advantage in the past
several decades. Summarized by Prime Minister Margaret Thatcher’s fa-
mous phrase “There Is No Alternative,” this position argues that global
capitalism and continued oppression are not just the best possible alterna-
tive, but rather the only possible alternative.
24. The liberal and the capitalist state are, of course, one and the same. The
state is contradictory (Clark and Dear 1984; Habermas 1974).
25. I say “one means” because there are clearly others: both progressive and re-
actionary economic policies can be enshrined in law, for example, as can
many moral principles (also both progressive and reactionary), but at root
these must entail an assessment of rights: both what is right and that to
which people are entitled only by dint of their residence in a political com-
munity. All of these terms—rights, laws, political community, residence—
are indeterminate and therefore open to ongoing struggle. This is why dis-
cussions of power are vital to any discussion of rights, morality, and so
forth. The difference between morality and uninstitutionalized social
struggle on the one hand, and rights on the other, is that the latter neces-
sarily demands a theory of power—and its exercise—at its heart. Dis-
courses of morality assume human perfectability; uninstitionalized social
struggle assumes that there never are winners who can organize power and
violence to their overwhelming advantage; the struggle for rights and their
institutionalization at least frankly admits that some people are shits and
will do all they can to screw others unless restrained from doing so by the
full institutional and police weight of society.
26. The 1990s discovery of “compassion fatigue” among the urban and subur-
ban middle and upper classes has at least in part licensed the remarkably
mean-spirited legal attack on homeless people during that decade. Beyond
its inherent paternalism, as a force for progressive change “compassion”
has very clear limits.
27. Good discussions of the literature may be found in Blum and Nast (1996);
Brenner (1997); Gregory (1994); McCann (1999); Merrifield (1993, 2002);
N. Smith (1990); Soja (1989).
28. This argument is fully developed in Ch. 3 of N. Smith (1990).
29. D. Smith (1994b, 103–107) spends several pages developing and critiquing
Young’s (1990) arguments about the relationship between justice and the
politics of difference. Smith concludes (1994b; 107) that Young’s theory of
justice is ultimately “Utopian,” but as we will see, when it is placed in its
geographical context such a charge cannot be sustained. Young’s work has
received a great deal of attention in geography. See Harvey (1996, Ch. 12)
and Minnesota Geography Reading Group (1992).
30. “The immediate provision of basic material goods for people now suffering
severe deprivation must be a first priority for any program that seeks to
make the world more just” (19).
31. Michael Brown (1997) and Lynn Staeheli (1994) have begun to explore the
complex geography of the “work of citizenship.” In Brown’s case, primary
inspiration is taken from Laclau and Mouffe’s (1985; Mouffe 1992) post-
structuralist development of “radical democracy” that suggests that the
moment of democracy may or may not be easily “public” in any traditional
sense. Staeheli develops feminist arguments (e.g., Pateman 1989) to make
the same argument as she shows the widely varying locations of women’s
political work.
32. See Chapter 6 for a discussion of how the California Supreme Court relied
on this point to deny homeless people a claim to the right to sleep in pub-
lic when no other housing was available.
33. We will examine the degree to which such a world is being constructed in
the United States in Chapters 5 and 6.
34. “Public sphere” is a complicated term in that it indicates public interaction
at a range of scales and across several levels of abstraction. Both people
gathering at a town meeting and the sum total of discourse in the media
are often referred to as aspects of the public sphere. My argument is not
that these are not constituents of public spheres but rather that much aca-
demic debate about the public sphere occurs amidst a high level of analyti-
cal imprecision.
2
Making Dissent Safe

for Democracy
Violence, Order, and the Legal
Geography of Public Space
The right to the city is never guaranteed and certainly never freely
given. Indeed, it is never, a priori, clear to whom the right to the city be-
longs: that too is decided in the crucible of social struggle, struggle that
ranges from the home to the city streets and, in the United States, into
the chambers of the Supreme Court. That is to say, the “actually exist-
ing” right to the city—and the struggle for its expansion by some social
groups and its contraction by others—is the product of specific social
contests, in specific places, at specific times. And yet, these contests
themselves give rise to particular forms of regulation—or the adjudica-
tion of interests—that, as law or as formally enunciated rights, are uni-
versal (or better yet, universalizing) in their intent.
Take two recent decisions by the United States Supreme Court, two
decisions that are particularly complex for those of us interested in pro-
moting a progressive right to the city. Both concern the rights of women
seeking abortions as they are confronted by protesters outside abortion
clinics. The first established the need for especially sensitive laws regu-
lating the conduct of protesters (Madsen v. Women’s Health Center 1994).
The second concerns one such law and its constitutionality (Hill et al. v.
Colorado et al. 2000). Taken together, the two suggest a certain way of
thinking about public space, and hence the right to the city. But both
42
also indicate a particular understanding of public space that is deeply

problematic, even as it has been developed out of a long history of so-
cial struggle and judicial regulation, a history that both deeply influ-
ences how people struggle to claim a right to the city and how they un-
derstand the relationship between social practice and political ideas
(and ideals). The purpose of this chapter is to work backwards from
these two cases to understand both the logic governing judicial (and
therefore police) regulation of public space and the history of struggle
that gave rise to that logic. For it is in this history that we can begin to
glimpse not only how people struggle in public space for their rights
but also how the content of public space itself conditions that struggle.
We can also see how protest in one realm of social life—the struggle be-
tween capital and labor, for example—can have profound effects on
protest in another—the struggle between those who fight for a woman’s
right to abortion and those who would deny it. Such effects, of course,
are what give the “cry and the demand” for the right to the city its poi-
gnancy and its force.
BUBBLE LAWS, ABORTION RIGHTS,

AND THE LEGAL CONTENT OF PUBLIC SPACE
Decided in 1994, Madsen v. Women’s Health Center announced the con-

stitutionality of an important regulatory strategy for controlling vio-
lence by anti-abortion protesters. Ruling to strike down some parts and
uphold others of a lower court’s injunction regulating protests outside
an abortion clinic in Melbourne, Florida, the United States Supreme
Court declared that the streets around the clinic constituted a “tradi-
tional public forum.” Any restriction of “speech” in this forum had to
be accorded the highest scrutiny to assure that it was content neutral
(Madsen 1994, 2524)—that it did not revolve around regulating what
people were saying, only how (and when and where) they might say it.
The Court ruled that some regulation of anti-abortion protesters was re-
quired because protesters’ actions (rather than what they were actually
saying) both threatened violence and threatened the rights of others.
The Court therefore upheld provisions in the injunction that barred
protesters from occupying a 36-foot buffer zone around the clinic en-
trances and driveways (excluding private property that could not be
regulated as a public forum). The level of noise made by the protesters
could also be regulated. However, the court ruled that a 300-foot zone
around the clinic in which the protesters could not approach employees
or patrons was too great a burden on the free speech rights of protesters:
a much smaller exclusion zone would have to be drawn. Similarly, a ban
on signs and banners together with a 300-foot restricted zone in the
streets near clinic employees’ homes were also invalidated (Madsen
1994, 2526–2530). In short, drawing on a large body of precedent, the
Court held that it was within the power of lower courts to establish ap-
propriate “time, place, and manner” restrictions on the exercise of
speech and assembly by anti-abortion protesters (Madsen 1994, 2524).
Partially in response to this decision (which was geared toward a
specific injunction but which established the broad conditions under
which anti-abortion protest outside clinics and clinic employees’ homes
could be regulated), a number of state legislatures and local jurisdic-
tions created “bubble laws” regulating the actions of protesters within
certain distances of clinics and homes. In addition to regulation of the
fixed space around entrances to clinics, many such laws also established
a protective, moving “bubble” (typically 8 to 15 feet) around patrons
and employees entering clinics. It was one such law that the Supreme
Court upheld by a 6–3 majority during the 2000 Court term (Hill
2000). Passed by the Colorado state legislature in 1993, this law specifi-
cally held (in part) that it is a misdemeanor if a person “knowingly ob-
structs, detains, hinders, impedes, or blocks another person’s entry or
exit from a health care facility” (Colo. Rev. Stat. § 18-9-122 para. 2).
The “bubble” restriction was quite specific:
No person shall knowingly approach another person within eight feet of

such person, unless such other person consents, for the purpose of pass-
ing a leaflet to, displaying a sign to, or engaging in oral protest, education,
or counseling with such other person in the public way or sidewalk area
within a radius of one hundred feet from any entrance door to a health
care facility. (C.R.S. § 18-9-122 para. 3)
As with the more general restriction, anyone violating this “bubble”

provision is guilty of a misdemeanor.
In his opinion for the majority, Justice John Paul Stevens noted that
while the law made it more difficult to hand a leaflet or otherwise “give
unwanted advice” to someone entering a clinic, it did not entirely pro-
hibit anti-abortion protests. While the law prohibits protesters from
“approaching” people, “it does not require a standing speaker to move

away from anyone passing by” (Hill 2000, 2485). In its clearest state-
ment, the majority opinion asserted that the Colorado statute “places
no restrictions on—and clearly does not prohibit—either a particular
viewpoint or any subject matter that may be discussed by a speaker.
Rather, it simply establishes a minor place restriction on an extremely
broad category of communication with unwilling listeners” (Hill 2000,
2493).1 That is, the statute regulates space and spatial relationships as a
means of protecting a woman’s right of access to abortion (and other
health) clinics free from interference by those who would wish her not
to seek an abortion. The majority held that this law did not restrict the
content of anti-abortion protests because it no less prohibited all other
messages within the bubble established by the law: “the statute applies
equally to used car salesmen, animal rights activists, fundraisers, envi-
ronmentalists, and missionaries” (Hill 2000, 2493).
While the majority is certainly correct in its opinion, the fact re-
mains (as the majority freely admits) that the legislative history of Colo-
rado’s law makes it clear that anti-abortion protesters were the specific
target of the law—not used car salesmen, fund-raisers, or animal rights
activists. In Colorado, as in many other states, anti-abortion “sidewalk
counselors” had been relatively effective in both deterring women seek-
ing abortions from entering clinics and intimidating clinic workers.
Indeed, links were made, both in the public mind and in courts of law,
between sidewalk counseling and even more violent forms of anti-abo-
rtion protest, such as the bombing and torching of clinics, harassment
of and assassination attempts on abortion clinic workers, stalking, and
so forth. Colorado’s law, like the later Federal Access to Clinic Entrances
law, was designed to redress some of these problems by regulating the
space around a clinic entrance so as to better assure that a woman’s
right to abortion was more than just a “paper right”—that it was a right
that could be practiced.2 The content of the protesters’ messages, as well
as the protesters’ conduct, was exactly what was at stake—no matter
how much the majority argued to the contrary.3 Indeed, this is exactly
why this case, and others like it, is important. Under U.S. constitutional
law, “political” speech is afforded a great deal of legal, and even more
ideological, protection. The Supreme Court professes itself to be keenly
interested in assuring that the state does not “overly burden” the right
to political speech and often goes to impressive lengths to find ways to
regulate or even ban certain kinds of speech (and certain messages too)
indirectly while at the same time claiming to protect the very speech it is
prohibiting. Perhaps the primary means of accomplishing this goal is
through the regulation of space itself. The “right to the city” therefore is
always vetted through, and to some degree regulated by (even if only in
the negative), a geography of law. In turn, the very nature of urbanism is
at least in part a product of the struggle over the legal content of public
space—who owns it, who controls it, who has the right to be in it, and
what they may or may not do once there.
Seeing public space in these terms allows us to understand that
“law” is always “enacted,” even performed, in particular spaces and at
particular times. Law, and the “rights talk” that accompanies it, shapes
social struggle in particular ways—as for example when activists shape
their protest strategies in particular public spaces so as to conform to or
actively resist specific laws and regulations. But so too do these enact-
ments and performances stretch and sometimes even break the law, re-
quiring the pieces to be reassembled, perhaps by the Supreme Court,
perhaps by lower courts, or perhaps, as we will see below (Chapters 5
and 6), by crusading city administrations and police forces, into a new
whole, a new set of rules and regulations that seeks to emplace univer-
salizing order on specific public spaces. A wide range of scholarship in
geography (e.g., Blomley 1989, 1994a, 1994b, 1998, in press; Blomley
and Clark 1990; Bakan and Blomley 1992; Chouinard 1994; Clark
1990; Delaney 1998, 2001; Pue 1990; in general see Blomley, Delaney,
and Ford 2001) has explored the contradictions that arise because laws
(and rights) are simultaneously situated in specific spaces and places—
specific spaces such as the sidewalk in front of a women’s health clinic,
give rise to specific regulatory and legal strategies—and universalizing
in that they either cover much wider spaces or are easily transferable to
different sorts of spaces. As both the majority and the dissent in the
Colorado bubble case recognized, the law in question could easily be
adapted to a range of other circumstances and a range of different kinds
of space—just so long as there was a “substantial state interest” in regu-
lating particular behaviors and kinds of speech. The purpose of this
chapter is to further explore this contradiction through the lens of a
particular complex of laws originating in a set of cases seeking to regu-
late speech that was feared to be “seditious,” transferring into a set of
cases that sought to tightly regulate labor protest, and coming to full
flower in the abortion clinics cases of Madsen and Hill. This complex of
laws seeks to regulate both the content and the form of protest by regu-
lating not protest itself but the space in which that protest occurs (and
thus which is produced, at least in part, by protest).
REGULATING PUBLIC SPACE
In the Colorado bubble law case, the Court drew heavily on the earlier
Madsen decision that upheld the constitutionality of an injunction
against anti-abortion protesters in Florida and thus paved the way for
the dozens of local, state, and federal laws like the Colorado one that
enshrined both stationary and moving exclusion zones around women
seeking access to clinics in the statutes. In Madsen the Supreme Court
attempted to delineate a space of protest that retained the protesters’
rights while “ensuring safety and order . . . promoting the free flow of
traffic on public streets and sidewalks, and . . . protecting the property
rights of all citizens” (Madsen 1994, 2526, citing Operation Rescue v.
Women’s Health Center, Inc. 1993, 672). The clear assumption of the
Court, and one that, as we will see, is well-developed in nearly a cen-
tury of Supreme Court decisions, was that a public space of protest
could only “work” if it was orderly and free of potential violence (to
people or to property). The Court reasoned that tight but reasonable
boundaries had to be drawn around the public space to retain it as a
place open for public political activity. Only in this way could peaceful
protest be promoted while the rights of clinic patients and employees
were also protected. In some ways, the Court’s decision was a classically
liberal one that assumed that ideas and speech acts could be readily di-
vorced from actions—from their very performance—and still retain
their power. Such a line of reasoning argues that a democratic polity re-
quires dissenting ideas; these ideas, however, have to stand or fall on
their own merits as they enter into competition with other ideas; the
better ideas win, but only by being tested against less worthy ideas.
Speech, the act through which ideas are put into circulation, must thus
be protected in a democracy. If, however, speech is forced into the public
arena, or if violence accompanies that speech, it can and must be regu-
lated. The assumption behind this ideology, of course, is that all individ-
uals have equal access to what the liberal Supreme Court Justice Wil-
liam Brennan once famously called “the marketplace of ideas” (Lamont
v. Postmaster General 1965).
For the Supreme Court, at least since the 1930s, the place where
ideas come into competition with one another has been “the streets and
parks” and other public forums that “have immemorially been used for
the purpose of assembly, communicating thought between citizens, and
discussing public questions” (Hague v. CIO 1939, 515). Public space is
imagined to be the site of political inclusiveness, a place in which inter-
ested individuals can come together to debate and to voice dissent. Ac-
cording to the democratic ideology enshrined in what the Court has
come to call “public forum doctrine,” the free exchange of ideas can oc-
cur only when public space is orderly, controlled (by the state or other
powerful interests that can maintain order), and safe. The free exchange
of ideas is predicated on Arnoldian order. The goal for the Court, or at
least those members seeking to uphold classically liberal notions of de-
mocracy, therefore has been one of writing rules for public space, rules
that will make dissent possible, but possible only if it can be shown to
be free of “force” or “violence.”
The public forum doctrine upon which Madsen and Hill are based
seeks to define what Kalven (1965) called a “new Roberts Rules of Or-
der” for public space.4 These rules of order are designed to protect the
“marketplace of ideas” from conduct that is threatening to the exchange
of ideas. The Court has created three types of public forums, each of
which must be regulated differently. The first type—those streets, parks,
and other places that have been open to the public “from time immemo-
rial” (traditional public spaces)—must have the least restrictive laws
governing the exercise of speech. Any laws regulating the “time, place,
and manner” of speech and assembly must be rigorously “content neu-
tral.” The second level of space is dedicated public space—such as pla-
zas in front of federal buildings or portions of public college cam-
puses—which a government or state agent has designated as open to
public speech and assembly. Like traditional public forums, these spaces
can be regulated in terms of time, place, and manner, but not in terms of
speech content. But unlike traditional public forums, the state has spe-
cifically enabled these spaces and thus has a greater right to remove
them from public use. The final form of public forums includes all re-
maining public property.5 In this class (which includes everything from
open-space trails and undedicated plazas to schools and military bases)
speech activities can be freely regulated (Haggerty 1992/1993, 1128).
In the Madsen case, the Court considered the streets around the
abortion clinic in Melbourne, Florida, to be a traditional public forum,
but one which, because of the conduct (rather than the speech content)
of the protesters, had to be carefully regulated. Justice Antonin Scalia

did not think that the Court did a very good job of regulation. In his
vigorous dissent, Scalia argued that the majority of the Court left “no
doubt” that their goal was to “restrain persons not by proscribable con-
duct, but by proscribable views” (Madsen 1994, 2540, emphasis in origi-
nal). By restricting the conduct of only anti-abortion protesters and not
prochoice counterprotesters (whom Scalia described as just as disor-
derly and potentially violent, if not more so), the Court clearly had
eliminated the right of dissent in public space. “[T]he Court,” he con-
cluded, “has left a powerful weapon lying about today,” waiting to be
used by those who are not “friends of liberty” in their attempts to
restrict the public speech and assembly rights of militant groups
(Madsen 1994, 2549–2550). Using an “ad hoc nullification machine”
that seemed to work only in cases concerning abortions, Scalia com-
plained, the Court had claimed “its latest, greatest, and most surprising
victim: the First Amendment” (Madsen 1994, 2535). Scalia repeats ex-
actly this argument in his dissent from Hill (2000, 2503), arguing fur-
ther that under the Court’s doctrine the First Amendment is now pretty
much “a dead letter” (2507). Indeed, according to Scalia, “[t]here is ap-
parently no end to the distortion of our First Amendment law that the
Court is willing to endure in order to sustain this restriction upon the
free speech of abortion opponents” (2508).
The Madsen and Hill decisions are an important if uncomfortable
place to begin an historical geography of the legal structure of public
space because, contra Scalia, the decision of the majority in both cases
is in general accord with developing doctrine concerning the use of
public space. And this doctrine, as we will see, is both formative of and
troubling to any ideological notions we may unreflexively hold about
public space as a center of democratic discourse. The right to the city is,
in part, vetted through decisions like those made by the Court in
Madsen and Hill. The restrictions that Scalia sees as a “powerful loaded
weapon” ready to slay cherished First Amendment ideals are really
nothing new and in fact merely confirm a general trend of spatial regu-
lation inaugurated by the Court in the early 20th century as a means for
making dissent safe for democracy. Standard legal histories of free
speech and assembly write that history as one of progressive enlighten-
ment in which onerous old restrictions on public assembly and speech
have been swept away as successive Courts have realized the value of
dissent to the democratic project (for a review see Sunstein, 1992). Ac-
cording to this history of progress, the real liberalization of public space

law begins with the ringing dissents of Justices Oliver Wendell Holmes
and Louis Brandeis in the 1910s and 1920s as they fought a conserva-
tive Court majority bent on restricting nearly all dissent in the name of
order. By the 1930s a more liberal Court majority finally ratified the
opinions of Holmes and Brandeis, and the promise of the First Amend-
ment was at last fulfilled. The problems of First Amendment law since
then have been technical: how does the state write regulations that si-
multaneously protect speech and maintain order?
The point of the remainder of this chapter is to show how this his-
tory of progressive enlightenment, if confined to the level of Court deci-
sion making (as it often is), is both too simple and incapable of explain-
ing either the nuances of decisions such as Madsen and Hill or the
tortured politics of Scalia’s dissents. Nor is it capable of shedding much
light on the absolutely critical importance for understanding struggle
over the right to the city that nonetheless attaches to the work of such
regulatory bodies as the Supreme Court and their ability to make and
define law. The history of progressive enlightenment also makes it diffi-
cult to see just why it might be necessary, as Raymond Williams says,
for people to “go again to Hyde Park”—to constantly meet and speak in
public space not only for some particular issue but also to claim again
and again the very right to meet and speak in public space.
The way to understand these issues is to uncover the source of po-
litical and regulatory change in the actual battles that have led to the
formulation of public forum doctrine (or other regulatory apparatuses).
By doing so we can better grasp how judicial and legislative lawmaking
works dialectically with social and political action to structure public
space itself. One of the shortcomings of traditional legal analysis, as
Nicholas Blomley (1994a) has shown so clearly, is that it takes the uni-
versality of law for granted when it should show how that universality
is built out of particular spaces and particular times and is thus respon-
sive to those spaces and times in ways that may make it inappropriate
for other social contexts. I will suggest in the following sections that, by
looking at the recursive interactions of law and social action in particu-
lar urban “public” spaces, we can begin to see how so basic a judicial
tool as public forum doctrine developed not so much as a means for as-
suring First Amendment rights (as Justice Scalia assumes in his dis-
sents) but rather as a tool for making certain kinds of dissent possible
for a certain kind of democracy. The Court, as we shall see, has been
both a site of progressive change (though a quite limited one) and a
force for protecting, in the name of order, dominant interests against the
very kinds of acts that make dissenting speech possible. Indeed, the his-
tory of public forum doctrine, as we will see, begins with a desire by
lawmakers and the judiciary to control dissenters, particularly radical
workers seeking to redress political and economic injustices.6 The ma-
jor difference between the abortion cases and earlier cases involving
labor picketing (cases that are cited with great frequency by both sides
in Madsen and Hill) is mostly that the state’s interest in regulating dis-
sent has moved from radical labor to radicals of other sorts. The ques-
tion Madsen and Hill thus raises is not just one of public forum doctrine
as it relates to real spaces and real actors, as it structures public space,
but also one of the adequacy of public forum doctrine for determining
both the shape of political discourse and the shape of public space in
the city—and hence the shape of ongoing activism in and over public
space.
VIOLENCE, ORDER, AND THE

CONTRADICTIONS OF PUBLIC SPACE
Public space is contested both in political and legal theory and on the
ground. As a legal entity, a political theory, and a material space, public
space (as will be made clear throughout this volume) is produced
through a dialectic of inclusion and exclusion, order and disorder, ratio-
nality and irrationality, violence and peaceful dissent. In order for mate-
rial public spaces to “work” as places of politics, the Supreme Court’s
public forum doctrine declares that they must be orderly and rational.
This is an old idea. Public space has long been a place of exclusion, no
matter how much democratic ideology would like to argue otherwise
(hence the need “to go again to Hyde Park”). Whether in the ancient
Greek agora (Hartley 1992; Sennett 1994), or the early American repub-
lic (Marston 1990; Shklar 1991; Staeheli and Cope 1994), rational
“free” discourse was protected by excluding irrationality. In both cases—
the agora and the American common—women and the majority of men
were politically (if not always bodily) excluded. By definition, excluded
peoples were irrational and disorderly: rationality was closely defined in
terms of gender, class, and race. It resided in the bodies of certain men
(E. Wilson 1991).7
The ideologies of inclusiveness that support public forum doctrine
are at odds with the fact that excluded groups—women, workers, politi-
cal dissidents, sexual minorities, and all those deemed by dominant so-
ciety to be disorderly or unruly—have had to fight their way into public
if they wanted to be heard (or sometimes even seen).8 The history of
widened representation in public space is thus not one of simple pro-
gressive enlightenment by courts or legislatures. To win the right to rep-
resentation as part of the political public, excluded groups have taken
the streets, plazas, and parks and transformed them into spaces for rep-
resentation.9
This history of exclusion and struggle thus exposes the contradic-
tion that structures public space. On the one hand, democratic political
ideology rests on the assumption that only orderly, rational discourse
can produce the sort of “free trade in ideas” (Abrams v. United States
1919, 630) that makes truth and informed public opinion possible. On
the other hand, order and rationality are preserved by excluding some
people and some conduct from the space of the public. Within this con-
tradiction lies the assumption strongly held by the Court that orderly
discourse can be preserved in public forums only to the degree that
both the spaces and the discourse are devoid of force. For this reason,
violent—or even quite forceful—dissent is considered within the law to
be fully transgressive of the boundaries of appropriate behavior in pub-
lic space. Yet, as we will see, often it is only by being “violent” or force-
ful that excluded groups have gained access to the public spaces of de-
mocracy. Indeed, it is precisely such “violence” that has forced the
liberalization of public space laws, that has forced what appears in law
as merely a progressive opening up and more careful regulation of dis-
sent so that more, rather than fewer, viewpoints are heard.
I have put “violence” in quotation marks in the previous sentences
simply to raise the question—a question that is frequently before the
Court in public forum doctrine cases—as to just what violence is. On
the surface, violence appears to be a simple concept: it is the act of do-
ing harm, injury, or desecration through physical force. In social use,
however, things get more complicated. As Raymond Williams (1983,
239) has pointed out, it is common to refer to the acts of terrorists as
“violent,” but not so the acts of their opponents, such as the army,
which engage in the use of “force.” Moreover, common usage usually
conflates the sense of violence as doing harm with violence as “unruly
behavior.” “It is with the assumption of ‘unruly,’ ” Williams (1983, 239)
suggests, “and not, despite the transfer of the word, of physical force,
that loud and vehement (or even strong and persistent) verbal criticism
has been described as violent.”10 The exclusion of violence from public

space has often been simply the exclusion of the “unruly”—those who
are a priori defined as illegitimate and thus threatening to the existing
order (as so well illustrated by the complaints of “little Arnolds” such as
George Will).
Yet it is clear that, despite the arguments of those who seek to pro-
tect the status quo in the name of an orderly and limited democracy, vi-
olence (from “below”) can promote justice or the expansion of rights.
This is why the masses went to Hyde Park in the first place, and it is
why they must continue to go again and again. As Hannah Arendt
(1972, 160–161) has written:
. . . in private as in public life there are situations in which the very swift-
ness of a violent act may be the only appropriate remedy. . . . The point is
that under certain circumstances violence—acting without argument or
speech and without counting the consequences—is the only way to set the
scales of justice right again.
The seeming irrationality of violence—“acting without argument or

speech and without counting the consequences”—becomes a rational
means for redressing the irrationality of injustice, for withdrawing con-
sent from an order that does not deserve to be legitimated. Violence
thus has a (contested) normative aspect.11
Although violence has the potential for being just, Arendt (1972)
argued that the use of violence by the state usually implies an evacua-
tion of power at the heart of the regime.12 In her discussion, however,
Arendt (1972) purposefully elided the “rational” and “irrational” as-
pects of violence—violence as impudent harm and violence as a means
to an end—showing that no such separation is easy or natural and that
violence has different meanings depending upon by whom, on whom,
and for what purpose it is committed. Thus, on the one hand, “violence
appears as an alternative to institutionalized political influence—the
voice of the voiceless, the ultimate, and often effective insistence of the
deprived on being taken into account” (Rule 1988, 172). On the other
hand, experience of state violence “leads to the expectation that repres-
sion works” (Rule 1988, 176, emphasis in original). That is, both spe-
cific acts of repression and ongoing repressive violence by the state (or
dominant factions within the state) make dissent, particularly violent
dissent, too costly, leading to conformance within the political system.
Only when cracks appear in the façade of unremitting repression can

oppositional violence break through the wall of oppression. There are
times when dissent must be violent. As Tushnet (1984, 1390) has ar-
gued, to make excluded voices heard, protests require drama, whether
by becoming “the victim of discrediting violence, or developing some
novel form of protest. . . . Yet precisely because effective types of protest
must be novel, they are not protected in public forum doctrine.”13 Being
“unruly” often is a prerequisite for getting heard at all: mere speech is
not enough—but it is all that is protected by the Court.
DISORDER, VIOLENCE, AND THE LEGAL

CONSTRUCTION OF PUBLIC SPACE
BEFORE WORLD WAR I
Picketing as Violence
The Supreme Court’s concern with dissent and its relationship to vio-
lence in public space is of relatively recent origin. Before World War I,
the Court decided no important public speech or assembly cases. When
local or lower federal courts addressed the problem of assembly and
speech, their concern usually was with exclusion, and in particular with
finding ways of stopping demonstrations by militant workers. For most
justices, as for most urban reformers or upper-class lawmakers, mem-
bers of the working class were inherently irrational and violent agents
in an urban society that was not just built on, but demanded, a strictly
controlled rationality (see American Social History Project 1989, 138;
1992, 93).14 For many judges, the “typical worker” “was almost always
male, single, white, but probably foreign born, with an unpronounce-
able last name, uneducated, unskilled, rootless, shiftless, irrational, un-
predictable, aggressive, and thus prone to violence, and sympathetic to
socialist, revolutionary ideas” (Avery 1988/1989, 7). Judges therefore
imagined workers as incapable of properly appreciating “American” in-
stitutions and values—such as the right of free speech and assembly—
and hence saw workers as threatening to those very rights. Early federal
intervention in speech and assembly cases was not concerned either
with protecting the right to dissent or with creating the boundaries in
which dissent was possible, but rather with controlling the public
behavior of the working class.
Most typically, this concern over behavior and order can be seen in
cases concerning labor picketing. Picketing was not considered speech,

or even expressive behavior. Rather, it was an act of violence that had to
be tightly controlled or limited. “There is and can be no such thing as
peaceful picketing,” declared a district judge in 1905 (Atchison Topeka
& Santa Fe Railway v. Gee 1905, 584), “any more than there can be
chaste vulgarity, or peaceful mobbing, or lawful lynching. When men
want to converse or persuade, they do not organize a picket line.”
Under such assumptions employers found no difficulty in obtaining in-
junctions enjoining all picketing or other means of public demonstra-
tion and persuasion. The assumption that picketing inevitably led to vio-
lence was enough to demonstrate to a court the necessity of controlling
workers during industrial disputes. The threat of contempt proceedings
against union leaders for failing to stop picketing and public displays
often was enough to break a strike (Avery 1988/1989; Forbath 1991).15
Moreover, picketing had to be banned because it “contradicted the
volunteeristic assumptions, individual sovereignty, and respect for prop-
erty embedded in the law” (Fink 1987, 911). Picketing was, in Justice
Holmes’s words, a “conspiracy” (Vegelahn v. Guntner 1896, 1077), be-
cause it demanded group solidarity and constant persuasive pressure on
others to join or support the cause. Under common law in the 19th cen-
tury, union activity was “legitimate only if [it] came within narrow
boundaries of socially acceptable behavior and did not threaten the em-
ployer, his patrons, or his workers with physical harm,” or if it “did not
interfere with the employer’s freedom of contract” (Avery 1988/1989,
38). If harm (to property particularly) was a form of violence, then all
concerted struggle against employers was understood to be violent. The
issue for the courts (and for local governments) before World War I, there-
fore, was how to prevent the violence that was an inevitable part of labor
disputes. The frequent answer was to restrict the use of the streets by the
workers, which not incidentally also served to protect the existing political
and economic order (American Social History Project, 1992, 125).
Taking to the Streets

Workers took to the streets anyway, creating “novel forms” of protest,
finding that it was only in that manner that their cause could be seen
and heard by others in their communities—and that “judge-made law”
restricting the rights of protest could be shown as inherently unjust. For
such organizations as the Industrial Workers of the World (IWW, or
Wobblies), which was founded in 1905 as a radical union and social

movement dedicated to forming “the structure of the new society with-
in the shell of the old” (IWW 1990), the streets and parks of American
cities were the most important organizing ground.16 As one IWW orga-
nizer declared, “The street corner was [the Wobblies’] only hall, and if
denied the right to agitate there, then they must be silent” (quoted in
Foner 1965, 172). In the western United States, the IWW concentrated
on organizing the poorest of workers—those that the mainstream press
derided as transients, hobos, bums, vagrants, and “won’t works.” Turn-
over on the job was too great (and repression by local law enforcement
and employers too brutal) to allow sustained organizing at the job site
(Foner 1965; Dubofsky 1988). To reach these workers, therefore, the
Wobblies had to take to the streets of western cities. As importantly, the
local mainstream press typically ignored the organizing drives and
strikes of the IWW, or reported them entirely to the favor of the em-
ployer (Foner 1965; Mitchell 2002). The street was thus the only place
from which the interest of the IWW could gain currency.
IWW members used the streets well. They were good at drawing
crowds, outshouting the Salvation Army as it attempted to proselytize
the same migrant or “casual” laborers, and reworking Salvation Army
songs to suit the cause of the Union (IWW 1990; Foner 1981). In re-
sponse, city after city in the West passed ordinances banning street
meetings. The ordinances were justified on the basis of clearing the
streets to improve traffic flow, or to promote some other “common”
good. But given that such ordinances typically were passed during orga-
nizing campaigns or bitter strikes, and given that organizations such as
the Salvation Army were regularly exempted from the ordinances, it is
clear that these ordinances were less concerned with traffic and more
concerned with the growing organizing success of the IWW among
poor workers.17
In response to these restrictive speech and assembly ordinances,
the Wobblies engaged in a series of “free speech” battles in western cit-
ies between 1909 and 1916. A very bloody but quite typical fight
erupted in San Diego in 1912. Citing “congestion,” but pressured by
sugar magnate John Spreckles and the local Merchants’ and Manufac-
turers’ Association, the city council banned all street speaking (except
by religious organizations) in a 49-block area downtown where workers
typically congregated. With support from allies among the local social-
ists, AFL members, and the California Free Speech League, the IWW re-
sponded by directly defying the ban by holding large street meetings

outside the restricted area. Incensed by such resistance to the ban on
speaking, the San Diego Union (March 4, 1912) advocated “hanging”
IWW members and their supporters, reminding San Diego citizens that
it was their right and duty to end by any means necessary the “anarchy
and disloyalty” that had befallen the city (Weinstock 1912, 17–19). Not
surprisingly, those who constituted what an investigator for the state
termed “much of the intelligence, the wealth, the conservativism, the
enterprise, and also the good citizenship of the community” (Weinstock
1912, 8–9) responded with unbridled vigilante violence (Foner 1965;
Dubofsky 1988). Free speech activists were forced to “run the gauntlet”
of gun butts, whips, and clubs as they were driven out of town by the
“good citizens” of San Diego. Vigilantes tarred and feathered numerous
people and savagely beat Emma Goldman’s escort Ben Reitman in an ac-
tion that garnered national press coverage (Bruns 1987; Falk 1990). Ig-
noring the violent activities of the vigilantes (and often complicit with
them), the police violently broke up downtown meetings. They also re-
quested and received from the city council a “move-on” ordinance that
gave them the right to disband any street meeting within city limits. The
police did not hesitate to exercise their new power: “Police clubs were
freely used” against workers who sought to speak on the streets the
night the “move-on” ordinance went into effect, “and the blood flowed
as a result” (San Diego Union March 29, 1912). In San Diego, the poli-
tics of the street certainly were not guided by the notion that dissent is
vital to democracy, the notion that undergirds public forum doctrine,
but rather by violence both by the state and by state-sanctioned vigilan-
tes.
Concerned less that rights of speech and assembly were being vio-
lently crushed in San Diego and more that vigilante violence was giving
California bad press, the governor eventually sent the state attorney
general to San Diego to threaten the activation of the military and the
arrest of vigilante leaders. The San Diego vigilantes backed down, and
the ban on street speaking was repealed—but not before the vigilantes
convinced President William Howard Taft to explore the possibility of
using federal laws and police power to destroy the IWW altogether
(Foner 1965, 202–203). Taft was clearly convinced by reports from the
vigilantes that some 10,000 IWWs were conspiring to overthrow the
government. Taft therefore asked the Justice Department to explore
how the government could “show the strong hand of the United States
in a marked way so they shall understand that we are on the job” (Taft
to Wickersham, September 7, 1912, quoted in Foner 1965, 203).18
Taft’s reaction was in accord with decisions he had earlier made as a
federal judge. In these, he was concerned with restricting the rights of
strikers because their “conspiracies” threatened the interests of private
property which it was the state’s duty to protect (see, especially, In re
Phelan 1894; Avery 1988/1989). Taft’s presidential concern also pres-
aged his decisions in free speech cases as Chief Justice of the Supreme
Court in the 1920s. In 1912, however, the Supreme Court left these
matters to be addressed by local jurisdictions and lower courts—and to
the use of violence as necessary to control dissent.
MAKING DISSENT SAFE FOR DEMOCRACY

Espionage Cases and a Liberally Repressive Language
of Speech
Taft’s concerns about IWW conspiracies are apposite for two reasons.
First, they were part of a wider governmental concern with radical, pre-
sumably subversive, activity (see Preston 1963). This distrust of dissent
only grew during World War I, and eventually numerous socialists, la-
bor leaders, and nearly all the important IWW leaders were jailed or de-
ported (or they fled the country to avoid persecution) under repressive
espionage and sedition laws passed in 1918 and 1919. Second, a series
of cases that came before the Supreme Court in 1919 as a result of con-
cern over antigovernment agitation during World War I required the
Court for the first time to develop a language of protected public
speech. These cases showed that “conspiracies” (against government or
business) and “violence”—unruly behavior—could be divorced from
First Amendment guarantees of assembly and speech in a manner that
protected formal rights of speech but clearly drew boundaries around
how that speech could be conducted and to what uses it could be put.
The fear of conspiracy, violence, and subversion that guided the Court
decisions in 1919 reinforced a long-standing American distrust of col-
lective rights, even as it heightened protections for individual rights (cf.
Gostin 1988, 9). By so doing, the Court was able to create speech rights
as a “legal fiction” (Halberstam 1993)—as formal guarantees not neces-
sarily supported in practice—that reinforced prevailing arrangements of
power, but did not require the use of state violence to shore up that
power.19
As part of the federal crackdown on dissent during World War I, a
quartet of espionage and sedition cases reached the Supreme Court in
1919 (Abrams v. United States 1919; Debs v. United States 1919; Frohwerk
v. United States 1919; Schenck v. United States 1919). Largely because of
the forceful opinions written by Justice Holmes in these cases, today’s
First Amendment scholars often trace the birth of public forum doctrine
to this time. All four cases asked the Justices to decide whether content,
location, and intent of public utterances made those utterances illegal.
In all four cases the Court held that public utterances could be tightly
controlled, indeed—that mere speech could be treasonous because of
the “tendencies” inherent in that speech, its location, and its intent.
Schenck: Protecting the State

Charles Schenck, a nationally prominent official of the Socialist Party,
had composed a circular encouraging recently drafted men to protest
the draft law by petitioning the government. He further claimed that it
was the duty of all citizens to support the “right to assert your opposi-
tion to the draft” (Schenck 1919, 51). For the latter claim, Schenck was
convicted under the Espionage Act for attempting to disrupt the draft.
Justice Holmes wrote a unanimous decision for the Court upholding
the conviction, but in this decision Holmes first adumbrated a set of key
phrases that would guide First Amendment speech law until this day.
“We admit that in many places and in ordinary times,” Holmes wrote
(Schenck 1919, 52),
the defendants . . . would have been within their constitutional rights. But
the character of the act depends upon the circumstances in which it is
done. . . . The most stringent protection of free speech would not protect a
man in falsely shouting fire in a theatre and causing a panic. It does not
even protect a man from injunction against uttering words that may have
all the effect of force.
Beyond the wholly inappropriate analogy linking political speech to

causing a panic in a theater (Smolla 1992), Holmes is clearly outlining a
doctrine of speech geared toward protecting the interests of the state
(Rosenberg 1989). He is far less concerned with the rights of the indi-
vidual or collective dissenter, as he makes quite clear in his next sen-
tences: “The question in every case is whether the words used are used
in such circumstances and are of such a nature as to create a clear and
present danger that they will bring about substantive evils that Con-
gress has a right to prevent. It is a question of proximity and degree”
(Schenck 1919, 52).
The “clear and present danger” test that the Court still uses to pre-
sumably protect most forms of public space “was born, thus, as an apol-
ogy for repression” (Cover 1981, 372)—a repression based on the
grounds that, given the circumstances, speech might well prove persua-
sive. In essence, Holmes’s decision merely upheld an older “bad ten-
dency” doctrine that held that people could be punished for making
statements “inimical to the public welfare, tending to corrupt public
morals, incite crime, or disturb the peace” (Gitlow v. New York 1925,
667).20 The possibility that Schenck might persuade others to heed his
advice was enough to prove conspiracy and warrant a conviction (Cole
1986, 880–881).
Frohwerk and Debs: Conspiracy versus Individual Rights to Speech

Less than 2 weeks after ruling on Schenck, the Court decided two more
espionage cases, Frohwerk and Debs. Both unanimous decisions were
again written by Holmes. In Frohwerk, the editor of a very small circula-
tion German-language newspaper argued that it was foolish for the
United States to send troops to France since Germany was too strong,
and thus American draftees could not be faulted for refusing to fight.
Although he had not advocated violence, or even organized resistance
to the draft, and had explicitly condemned antidraft riots in Oklahoma,
Frohwerk’s conviction was upheld by Holmes on the grounds that the
newspaper might fall into the hands of drafted soldiers and thereby dis-
rupt the war effort. Even the remotest likelihood that a person’s words
might prove persuasive was enough for Holmes and the Court to find a
conspiracy that trumped any right to free expression. As Smolla (1992,
100) has pointed out, Holmes did not even refer to his “clear and pres-
ent danger” standard from Schenck, “perhaps sensing that Frohwerk’s
trivialities could never be made to fit the language.”
Eugene Debs, the most prominent socialist in America, was ar-
rested, convicted, and sentenced to two concurrent 10-year sentences
for making a speech on socialism that, in passing, praised the courage of
draft resisters who had been arrested and sentenced to lengthy jail
terms. In upholding Debs’s conviction, Holmes held for a unanimous

Court that the key to the Debs case was that the defendant intended to
obstruct the war effort, even if his words did not directly support such a
conclusion: “[O]ne of the purposes of the speech, whether incidental or
not does not matter, was to oppose not only war in general, but this war,
and that the opposition was so expressed that its natural and intended
effect would be to obstruct recruiting . . . [and] that would be its proba-
ble effect” (Debs 1919, 214–215).
Once again the Court held that the mere possibility that speech
could be persuasive was enough to show that it was persuasive. This
persuasiveness, in turn, was enough to show either that a conspiracy
existed or that the words would lead to an inevitable and intended re-
sult: the obstruction of the war effort. Hence, it was enough to justify
the regulation of speech content so that the interests of the state could
be protected.
But Holmes’s language marked an important distinction that al-
lowed for an eventual liberalization of speech doctrine. In essence,
Holmes began to outline a theory of dissent in democracy that hinged
upon a distinction between the right of an individual to speak (and per-
haps even to gain an audience) and the possibility that her or his words
might actually have an effect—that they might, through persuasion,
lead to conspiracy. Like picketing, persuasive speech was understood to
be a forceful, even violent, act. Mere speech, however, so long as it did
not possess “bad tendencies,” was safe. Public discourse between indi-
viduals, each rationally expressing ideas, was democratic speech. Mass
speech aimed at persuading an audience was illegitimate (at least if that
speech was in dissent).21
Abrams: A Liberal Language of Speech Rights

This distinction became explicit in Holmes’s dissent from the last of the
1919 cases. Abrams v. United States (1919) was decided some 8 months
after the others, and Holmes’s dissent is seen by many law scholars as a
radical break from his earlier decision (cf. Smolla 1992). Holmes him-
self stressed the continuity of his decisions, and it is just this continuity
that in fact allowed the Court to develop a repressively liberal language
of free speech.
What seems to have worried Holmes during 1919 was that the trio
of decisions early in the year did not adequately explore the question of
“proximity and degree” he raised in Schenck. The Abrams case provided

an opportunity for further exploration. The case concerned five Russian
immigrants who threw leaflets out of a New York window onto the
streets below. These leaflets (in Yiddish and Russian) protested U.S. in-
tervention in Russia after the Revolution. The Court, this time with
Holmes dissenting, upheld the convictions under the espionage and se-
dition acts. In his dissent, Holmes argued that the actions of the Rus-
sians did not express an immediate enough danger to the interests of
the state. To be proscribable, he argued, speech had to be so dangerous
that “an immediate check is required to save the country” (Abrams
1919, 630). “Clear and present danger” was now more tightly drawn.
The tendency to cause harm was no longer quite enough for Holmes.
Rather, danger had to be immediate.
Holmes’s determination on this score comes in the midst of his fi-
nal dissenting paragraph—“a paragraph that is cited more frequently
than many majority holdings” and that “established the theoretical
foundation for all subsequent developments of First Amendment law”
(Cole 1986, 885):
Prosecution for the expression of opinions seems to me perfectly logical. If

you have no doubt about your premises or your power and want a certain
result with all your heart you naturally express your wishes in law and
sweep away all opposition. But when men have realized that time has up-
set many fighting faiths, they may come to believe even more than they
believe the very foundations of their own conduct that the ultimate good
desired is better reached by free trade in ideas—that the best test of truth
is the competition of the market, and that truth is the only ground upon
which their wishes can be safely carried out. That at any rate is the theory
of our Constitution. It is an experiment, as all life is an experiment. Every
year if not every day we have to wager our salvation upon some prophesy
based upon imperfect knowledge. While that experiment is part of our
system I think therefore we should be eternally vigilant against attempts to
check the expression of opinions that we loathe and believe fraught with
death, unless they so imminently threaten immediate interference with the
lawful and pressing purposes of the law that an immediate check is re-
quired to save the country. . . . (Abrams 1919, 630)
This is a fully liberal language of speech. Truth is at once tested and

revealed through the “free trade in ideas” where privately held beliefs,
expressed in public, enter into competition with all other ideas. For any
of these ideas to be heard, however, they must be expressed rationally,
and they must not threaten the state itself. Rather, the market metaphor
suggests that public speech must consist of simple propositions that,
like commodities, stand or fall on their own merits. Ideas are indepen-
dent, even fetishized, entities that gain currency only by their “right-
ness.” Ideas have a force of their own, and so if they are “forced” into
the marketplace, they are by definition invalid. But unlike San Diego in
1912, order in public discourse is not defined solely by the exclusion of
disorder. Instead it is defined by a need for civility, which itself will as-
sure that all ideas get heard. To allow the market to function “freely,”
state repression of expressive activity is still permissible in Holmes’s for-
mulation as long as the activity can be shown to be threatening to the
market itself. Attracting a crowd, attracting adherents, and thus creating
a monopoly in the market of ideas could be grounds for state interven-
tion.
In this sense, Holmes’s dissent is less a break from his earlier deci-
sions than often assumed: it still rests on the assumption that orderly
speech is individualistic, tightly rational discourse. And it says nothing
about the relations of power that may govern entrance into the market
in the first place. Indeed, Holmes’s (and the rest of the Court’s) attention
was soon diverted from such issues to an examination of how to best
promote “civility” in the free trade of ideas. And in so doing, whatever
progressive potential that may have existed in Holmes’s dissent was
soon eclipsed by a desire, in the name of civility, to assure that the free
trade in ideas in no way threatened property rights—especially the
property right the Court assumed employers had vested in their em-
ployees.
Protecting Property through Civility:
The “disorder” that threatened the civility of the streets and the prop-
erty of employers in the 1920s was defined not just as the immediate
disorder of the streets—although a new spate of free-speech fights cer-
tainly indicated the importance of that (Berman 1994)—but also as the
threat of global disorder implied by the rise of Bolshevism and fascism
in Europe. For conservative jurists and politicians like Taft, the threat of
Bolshevism was particularly vexing because it seemed to be behind
much of the local disorder in the streets of American cities. Bolshevism
“had penetrated this country,” Taft warned in 1919 as the Supreme
Court was deciding the espionage and sedition cases outlined above. He
continued:
Because of the presence of hordes of ignorant European foreigners, not cit-

izens . . . with little or no knowledge of our language, with no apprecia-
tion of American civilization or American institutions of civil liberty, it has
taken strong hold in many of our congested centers and is the backing of a
good many of the strikes from which our community is suffering. (New
York Times, October 31, 1919, quoted in Cover 1981, 353)
At the height of the postwar Red Scare, and in the midst of the notori-
ous Palmer Raids that carted hundreds of activists off to jail, Taft clearly
was expressing the tenor of the times. City ordinances throughout the
country still forbade public gatherings for political and labor purposes,
and Taft saw it as the duty of the judiciary to support the order that
these ordinances sought to impose. Taft’s opportunity to do just that
came when he was named Chief Justice of the Supreme Court in 1921.
The first important case he decided addressed precisely the issue of how
much speech (or other expressive activity) could be allowed in public
space before it threatened the existing order.
American Steel Foundries v. Tri-City Central Trades Council (1921)
had started 7 years earlier when the steel company reopened its foundry
in Granite City, Illinois, hiring back less than one-quarter of its former
workforce—and these at less than the union wage. Despite high local
unemployment, the Trades Council called a strike for the plant. When
only two rehired workers responded to the call, the Council established
pickets around the plant entrances. Three or four groups of up to two
dozen picketers were stationed on public streets around the factory.
During 2 weeks of picketing, there were occasional outbursts of vio-
lence on both sides of the dispute. Citing violence by picketers, Ameri-
can Steel obtained an injunction “perpetually” restraining strikers and
union officials from using “threats of personal injury, intimidation, sug-
gestion of danger, or threats of violence of any kind.” The injunction
also banned the use of “persuasion” by picketers attempting to get
workers to join the strike. Similarly, the injunction forbade “assembling,
loitering, or congregating about or in proximity” to the plant. In the
end, the injunction simply banned all picketing “at or near the premises
. . . or on the streets leading to the premises of American Steel” (Ameri-
can Steel Foundries 1921, 193–194).22
Deciding that picketing “automatically indicated a militant purpose
inconsistent with peaceable persuasion” (American Steel Foundries 1921,

205), Taft wrote for a unanimous Court that it was the duty of the court
system to protect the order of public spaces outside the factory and the
private property rights of the factory owners (a right that included ac-
cess to labor). “If in their attempt at persuasion or communication with
those with whom they would enlist” in their cause, Taft argued,
those on the labor side adopt methods which however lawful in their an-
nounced purpose inevitably lead to intimidation and obstruction, then it
is in the court’s duty . . . to limit what the propagandists do as to time,
manner and place as shall prevent infractions of the law and violations of
the right of the employees and the employer for whom they wish to work.
(American Steel Foundries 1921, 203–204, emphasis added)
The language here was destined to become quite important in the shap-
ing of political activity in public spaces. “Time, place, and manner” re-
strictions, like the “clear and present danger” test, are a cornerstone of
contemporary free speech and public space law.
For decades, labor had been agitating against the sorts of injunc-
tions upheld in American Steel, arguing that they all but eliminated the
First Amendment rights of labor to “protest and unit[e] peaceably to re-
dress wrongs” (Forbath 1991, 141). Against this Taft upheld the lower
courts’ long tradition of seeing labor protest as an interference with
property rights and the freedom of contract of nonunion workers. “This
construction,” Forbath (1991, 141) has noted, made “legal repression of
labor protest unproblematic.” Similarly, various courts had no trouble in
striking down labor-inspired anti-injunction laws, claiming that these
constituted unacceptable “class legislation” and thus were in violation
of the Fourteenth Amendment guaranteeing equal protection for all
classes under the law (Forbath 1991, 147–158). Yet, this construction
also proved problematic—if for no other reason than when courts
granted primacy to employers’ property rights they too were engaged in
a rather transparent form of class-based lawmaking. While Taft and
other jurists (including Holmes) did not shy away from simply asserting
the primacy of property rights, they often struggled to couch those
rights in a universal language that masked the class-based nature of
their rulings. This language was typically the Arnoldian language of ci-
vility and order.
By definition, and because it was seen to be inevitably violent, pick-
eting exceeded the bounds of appropriate “manners” in public space.
The “persistence, importunity, following and dogging” that the Court

understood to be always a part of picketing “became an unjustified an-
noyance and obstruction which is likely soon to savor of intimidation”
(American Steel Foundries 1921, 204).23 Municipalities and lower courts,
therefore, were required in the name of order to enjoin strikers from
picketing. An additional problem with picketing was that it was “certain
to attract attention and a congregation of . . . bystanders and thus in-
crease the obstruction as well as the aspect of intimidation which the
situation quickly assumes” (American Steel Foundries 1921, 204). In
other words, because it is an effective means of communication, and
therefore threatened the property rights of the employer, picketing had
to be banned. As Avery (1988/1989, 94) points out, the greater the sym-
pathy of a community to the demands of picketers, the more likely that
picketing and congregating would be banned.
The right to the city was quite narrowly drawn indeed, as Taft
made plain in his suggested remedy in American Steel Foundries. Since
picketing “cannot be peaceable” (American Steel Foundries 1921, 205),
Taft sought to replace picketing with what he called “missionaries” sta-
tioned at the entrance to the plant. And, Taft reasoned, the behavior of
these missionaries had to be carefully controlled:
We think the strikers and their sympathizers engaged in the economic

struggle should be limited to one representative for each point of ingress
and egress in the plant or place of business and that all others should be
enjoined from congregating or loitering at the plant or in the neighbor-
hood streets by which access is had to the plant, that such representatives
should have the right of observation, communication and persuasion, but
with special admonition that their communication, arguments and appeals
should not be abusive, libelous, or threatening, and that they shall not ap-
proach individuals together but singly, and shall not in their single efforts
at communication or persuasion obstruct an unwilling listener by impor-
tunate following or dogging his steps. (American Steel Foundries 1921,
206)
The space of Holmes’s “free trade in ideas” was thus governed, ac-
cording to Taft (and without Holmes’s dissent),24 not by the ability of
social groups to get themselves and their ideas represented to a larger
public, but rather by a set of restrictions designed to assure that all com-
munication was individual, polite, and nonthreatening to the property
rights of factory owners. The Court argued that “courts could, and
should . . . prohibit the politics of the street” (Cover 1981, 359), and re-
place it with a presumably depowered, rational, and orderly discourse.
Even as the Court sought to restrict—or even eliminate—the poli-
tics of the street, the issue nonetheless continued to be contested on the
streets themselves. While working-class politics and union policy were
certainly shaped by decisions such as American Steel Foundries (see
Forbath 1991), workers continued to picket and to organize in public
spaces. And localities continued doing what they had always done when
speech and expressive activity seemed to threaten existing political and
economic interests: they banned speech and arrested dissenters. “Al-
though cities rarely pursued prosecutions” of violators of speech and as-
sembly ordinances in the 1920s, “they successfully disbanded [street]
meetings, thereby suppressing unwanted speech” (Berman 1994, 301).
And well into the 1930s, they had the support of the majority of the Su-
preme Court. As Forbath (1991, 127) concludes, “[b]y legitimating em-
ployers’ intransigence and the heavy-handed policing of strikes,” such
ordinances and the case law that supported them “put the onus of vio-
lence and ‘disorder’ upon trade unionists; it meant that even the most
respectable trade unionist was always vulnerable to being treated like an
outlaw, a ‘thug,’ or an anonymous revolutionary,” and that, by contrast,
corporations were trusted as nonviolent and rational entities.
Anti-Picketing Ordinances and the Further Liberalization

of First Amendment Doctrine
Given the Court’s approval of restrictions on picketing and other forms
of labor speech, employer groups in the 1930s turned increasingly to
anti-picketing ordinances as tools in their battles with labor. In Califor-
nia, for example, the language of local and statewide anti-picketing ini-
tiatives closely mimicked Taft’s language in American Steel Foundries
(LFC 1944; Mitchell 1998c). Attorneys for the promoters of a 1938
statewide anti-picketing initiative cited American Steel Foundries to de-
clare that the only constitutionally permissible picketing was that done
by a single peaceful missionary (LFC 1938).
However, as the muckraking Senate La Follette Committee investi-
gating abuses of workers’ rights documented so convincingly, the anti-
picketing ordinances in California had the effect of promoting rather
than restricting violence. On the one hand, supporters of anti-picketing
ordinances saw their enactment as permission to bloodily prevent pub-
lic assembly and picketing by striking workers. On the other hand,

workers understood that the intent of the ordinances was to prevent not
just picketing but organization as well, and thus continued to force
their way into the streets, parks, and sidewalks whenever strikes or or-
ganizing campaigns were in progress. In 1944, the La Follette Commit-
tee (LFC 1944 1643) argued that anti-picketing ordinances in Califor-
nia and elsewhere were clearly unconstitutional. But at the time the
ordinances were written (1933–1938), Supreme Court precedent was
grounded in the decisions of Taft, not in the more liberal interpretations
of 1940 that the La Follette Committee cited (Carlson v. California 1940;
Thornhill v. Alabama 1940). These later decisions were hard-won rather
than freely given.
As the Depression decade advanced, courts found it hard to avoid
the fact that Taft’s language from the 1920s was inadequate to the task
of regulating or eliminating violence in public space. With militant
workers refusing to abide by the dictates of a restructuring capital; with
workers only intensifying the “great popular defiance” to judge-made
law that had marked the first two decades of the 20th century (Forbath
1991, 141–147); and with a New Deal Congress formalizing workers’
rights through the 1935 Wagner Act, the New Deal Supreme Court
(with several new Roosevelt appointees) began to rethink its emerging
First Amendment doctrine in the hope of better controlling the sorts of
violent confrontations that the La Follette Committee was document-
ing. In 1937, ruling on a criminal syndicalism case from Oregon, the
Court for the first time asserted that there did indeed exist a right to as-
sembly that was guaranteed in the First Amendment. The Court ruled
that local governments had no right to break up meetings with which
they disagreed:
. . . peaceable assembly for lawful discussion cannot be made a crime. The

holding of meetings for peaceable political action cannot be proscribed.
Those who assist in the conduct of such meetings cannot be branded as
criminals on that score. The question, if the rights of free speech and
peaceable assembly are to be preserved, is not as to the auspices under
which the meeting is held, but whether their utterances transcend the
bounds of freedom of speech which the Constitution protects. (DeJonge v.
25
Oregon 1937, 365)
But this is still not a clear affirmation of assembly rights. While meet-
ings could not be banned if they did not immediately promote violence
(Holmes’s “degree and proximity” argument had been expanded to as-

sert that speech and action were not equivalent), the Court still left the
door wide open for banning meetings if local governments or police
could determine that they would tend toward proscribed speech. As we
have seen, there still were plenty of proscribable cases of speech.
Even with this partial affirmation of public assembly rights, work-
ers’ rights of protest were not guaranteed. While the 1935 Wagner Act
had more or less guaranteed the right to strike, the exercise of that right
remained restricted by local anti-picketing ordinances. Mayor Frank
Hague, the infamous boss-mayor of Jersey City, New Jersey, saw nothing
wrong with repressing the rights of labor so that his city would be more
attractive to capital (Walker 1990). His government issued a permit sys-
tem for demonstrations and picketing and then regularly denied per-
mits to Congress of Industrial Organizations (CIO) organizers and their
sympathizers. Rather than inviting arrest by actively defying the mayor
(as the IWW would have done), the CIO, working with the American
Civil Liberties Union, challenged the legality of Mayor Hague’s tactics in
court by seeking an injunction against the mayor and his police. At the
end of 1938 a district court judge ruled that there was no evidence that
the CIO, ACLU, or socialist meetings would inevitably lead to violence
(as Hague claimed). The following year the case reached the Supreme
Court.
The Court was forced to rule on the validity of using the streets,
parks, and public meeting places not just for civilized discourse but for
political organizing—for just the sort of persuasion earlier Courts had
distrusted. In its strongest defense of public space as a locus for political
activity to that point, a plurality (but still not a majority) of the Court
held that
. . . wherever the title of the streets and parks may rest, they have imme-
morially been used for the purpose of assembly, communicating thought
between citizens, and discussing public questions. Such use of the streets
and public places has, from ancient times, been part of the privileges, im-
munities, rights and liberties of citizens. (Hague v. CIO 1939, 515)
Many histories of free speech stop at this point in the decision and de-
clare that the Court had finally ratified “a new and hard won right”
(Walker 1990, 111). As Walker (1990, 111) has written, “public areas
have never been ‘held in trust’ for discussion of public issues. Repres-
sion, by the very techniques used by Mayor Hague, was the grand
American tradition.” In this regard, Hague v. CIO is indeed a landmark
case.
But Walker’s (1990) analysis ends right where it should begin.
Whether or not the streets had been held in trust, they had been used by
militant groups seeking to represent their cause in public. They had
taken the streets and parks, whether such a taking was legally sanc-
tioned or not. All that Hague v. CIO did was begin to sanction the pro-
cess. And as the very next lines of the decision indicate, the reason for
this sanctioning was to illuminate a workable language of control.
The privilege of a citizen in the United States to use the streets and parks
for communication of views on national questions may be regulated in the
interest of all; it is not absolute, but relative, and must be exercised in sub-
ordination to the general order, but it must not, in the guise of regulation, be
abridged or denied (Hague v. CIO 1939, 516, emphasis added)
The issue, then, is the same as it had always been: how can order be
maintained in the face of the demand to use public space for organiza-
tion; and (secondarily) how can rights of speech, deemed necessary for
the production of truth, be protected through the imposition of order?
In fact the Court did not outline (and still has not outlined
[Sunstein 1992]) a means to test whether “the general order” was in fact
arbitrary, protecting the power of those who could afford to be orderly.
By arguing that streets and parks constituted a certain kind of public fo-
rum (as the plurality called it in Hague v. CIO), the Court had found a
means of regulating not speech itself but the space in which speech oc-
curred. By switching the focus of attention from speech and behavior to
the place in which it occurred, from the speech act to the forum, the
Court also paved the way for finally declaring picketing to be protected
speech in Thornhill v. Alabama (1940) and Carlson v. California (1940).
It was this move, some years after California’s anti-picketing laws were
enacted, that allowed the Senate La Follette Committee to argue that the
“unconstitutional laws which blanket a large part of the State now de-
serve the rating of oppressive labor practices. Their continued existence
threatens not only decent industrial relations and orderly government,
but the very essence of democracy” (LFC 1944, 1644). This is an argu-
ment the Committee never could have made, at least in reference to
Constitutional law, at the beginning of the Depression. Militant struggle
and constant defiance on the streets and in the courts by those who had
long been defined a priori as disorderly and violent had forced the
Court to find a new way to write the rules for civility in American pub-
lic space—to make dissent safe for democracy.
REGULATING PUBLIC FORUMS
After Hague v. CIO it was no longer the goal of courts to proscribe dis-
course in order to protect the state or property so much as it was to reg-
ulate the public forum toward these ends. For Justice William Brennan
in the 1960s, this change in focus implied a change in metaphor (Cole
1986). Holmes’s “free trade in ideas” no longer quite captured the issue.
Now, in Brennan’s words, concern was with the marketplace of ideas.
Writing in a case concerning whether the Post Office had the right to
detain unsealed foreign “communist propaganda,” Brennan argued that
the right to speak also implied a right to listen, to receive messages, to
be persuaded. “The dissemination of ideas can accomplish nothing,”
Brennan wrote, “if the otherwise willing addressees are not free to re-
ceive them. It would be a barren marketplace of ideas that had only sell-
ers and no buyers” (Lamont v. Postmaster General 1965, 398). Eight
years later, Brennan made his concerns even clearer in vigorous dissent
in a case concerning political speech on television: “Freedom of speech
does not exist in the abstract. On the contrary, the right to speak can
only flourish if it is allowed to operate in an effective forum—whether it
be a public park, a schoolroom, a town meeting hall, a soapbox, or a ra-
dio and television frequency” (CBS v. DNC 1973, 193).
To a large degree, the Court has now accepted Brennan’s argument
(though it has not done much to open the airways to dissenting voices),
and the recent abortion cases have been understood by both sides of the
Court as concerned with place regulation—with the nature of the forum
itself. As David Cole (1986, 891) has argued, the marketplace of ideas
metaphor, and by extension public forum doctrine, “ultimately justifies
affirmative intervention by the government in order to save not the
state, but the marketplace itself.” The focus therefore is on the nature of
space and its role in promoting or denying the “free trade in ideas.”
But both economic metaphors (Holmes’s free trade in ideas and
Brennan’s marketplace of ideas) are quintessentially liberal formulations
and thus write power out of the equation by assuming that all actors
have equal access to the market. All ideas, all actors, exist as commodi-
ties, ready to be bought and sold, always freely circulating according to
the logic and dictates of the market except when the state wrongly in-
tervenes to distort the market process. In other words state intervention
is acceptable if it protects the market (even if it is deeply iniquitous), but
it is unacceptable if it disturbs the market (even if the goal is to decrease
iniquitous relations and therefore increase participation). In this sense,
public forum doctrine concerns itself with negative rights (see Chapter
1, note 18)—protection from state interference—and not explicitly with
positive rights—the right to speak. Hence, public forum doctrine is not
so much an assurance that marginalized groups can be heard (the better
to promote democratic society) as it is a theory of laissez-faire govern-
ment, which, given the concern the Court has long expressed about
“class-based” legislation, is hardly surprising.
Justice Brennan recognized the degree to which his marketplace
metaphor ignored the power relations extant in society, and thus rein-
forced inequalities (but by doing so he remained in a minority in his
own Court—a minority that has since only grown weaker). He argued
that those who can communicate through ordinary channels of modern
discourse—because they either own and control the media or can
readily buy access to it—have little need for popular demonstrations in
the street. Brennan was especially concerned that the Court had failed
to treat television as the public forum it should have been, writing
about the actions of a Court he disagreed with:
Thus, as the system now operates, any person wishing to market a particu-
lar brand of beer, soap, toothpaste, or deodorant has direct, personal and
instantaneous access to the electronic media. He can present his own mes-
sage, in his own words, in any format he selects, and at the time of his own
26
choosing. Yet a similar individual seeking to discuss war, peace, pollu-
tion, or the suffering of the poor is denied the right to speak. (CBS v. DNC
1971, 2000)
The legal language of public space may have changed since William
Howard Taft’s day from the formal denial of rights to their formal pro-
tection, but the effect is pretty much the same. The Court remains an
instrument—through the language of law—of assuring exclusion in the
name of social order.
In this sense, for labor and other dissenting groups, the switch in
metaphorical focus has been a Pyrrhic victory, because while it is the re-
sponsibility of the state to order space in the “interests of all,” the Court
has been unable to indicate how the interest of all is to be determined
(see United States v. Kokinda 1990). The law treats all equally. But all are
not equal, and such equal treatment simply serves to reinforce unjust
social relations, as scholars such as Mark Tushnet fear (see Chapter 1).
The law has no way to recognize that, in order to be represented in pub-
lic, dissident groups have had to make their claims in a manner that
does not conform to constrictive norms and practices of rational dis-
course—that the needs of those who wish to use public space as a pub-
lic forum may not at all align with the images the Court holds of
orderly, rational discourse. Picketing (for example) works for marginal-
ized groups because it demands notice in a way that dispassionate
discourse simply cannot. Orderliness can thus quite easily serve power,
as Taft well recognized. The guarantee of the right to speak in public
forums is quite different from the question of effective access to that
forum by those who need to speak in the street. For this reason, then,
Tushnet (1984, 1387) argues that First Amendment law “has replaced
the due process clause as the primary guarantor of the privileged. In-
deed, it protects the privileged more perniciously than the due process
clause ever did.”
Tushnet is surely right in many ways. But he is not completely
right, for, as with the Court as a whole, such a claim can only be made if
analysis of First Amendment debates and lawmaking are abstracted out
of the actual political struggles from which they necessarily emerge.
Such abstracting is exactly what the Court does. The terms of that ab-
straction, however, are determined at least in part in public space it-
self—in the real struggles to speak and be heard, to listen and to gather,
to protest and picket, that continually shape the right to the city, either
in concordance with or in defiance of the ways that legislative bodies
and courts seek to regulate public space and the activities that take
place in it. Neither law nor public space is neutral or immutable. Both,
in fact, are sources of power, available to be used by those best able to
“capture” them and turn them toward their own particular interests.
When law and space come together, as they inevitably do, each
structuring the other, it makes little sense to abdicate the language of
rights (as many progressives such as Tushnet are willing to do), for this
runs the risk also of abdicating not just the language of justice but its
practice too. “Rights have not gone away,” Blomley (1994b, 410) cor-
rectly argues. They remain a key rallying cry, especially among the dis-
possessed or marginalized. “As such, the dismissal of rights-based

struggle as incoherent or counterprogressive seems condescending”
(Blomley 1994b, 410). Moreover, it concedes the language of rights to
those who offer a discourse of rights “centered on negative liberty, prop-
erty and the individual” (Blomley 1994b, 412). But since the Court is
more a friend of negative rights and the interests of the powerful than of
positive rights and the interests of the marginalized, it remains essential
that activists move again and again into the streets—that they “return
again to Hyde Park”—where a more positive vision of a just society can
be fought for (cf. Blomley 1994b, 413), for it is only there that geogra-
phy can be reconfigured in such a way so that law has to pay attention.
For women, African Americans, and all manner of ethnic groups, work-
ers, and progressive activists, the fight to claim the streets, parks, court-
houses, and other public spaces of the city is precisely the fight to re-
claim their rights as members of the polity, as citizens who have both
the duty and the right to reshape social, economic, and political life af-
ter an image perhaps quite different from the laissez-faire liberalism
promoted by the Supreme Court.
CONCLUSION
That is why the 1994 Madsen and 2000 Hill abortion clinic decisions
make a troubling lens through which to focus legal geographies of pub-
lic space, especially if one of our goals is to elucidate what a progressive
right to the city might be. In both cases, anti-abortion activists success-
fully claimed the language of free speech and public protest not to fight
for the expansion of rights, and certainly not to hold the state or capital
accountable for repressive practices, but precisely to repress others’
rights: the right to safe abortion, the right to work, the right to enjoy a
peaceful home life.27 In its turn, the Supreme Court both drew on and
honed its public forum doctrine so as to better order and regulate not
violent anti-abortion activists but protest itself. That is to say, by claim-
ing not to look at the content of the anti-abortionists message, the Court
developed a means by which its regulatory powers could be extended
into other protests, other social movements: law derived from a specific
struggle could be universalized. In the process, the Court did quite little
indeed to advance the positive right of women to abortion: clinics are
still few and far between, doctors still ill-trained, levels of violence
against abortion providers still on the rise, and women entering clinics
still subject to a barrage of “counseling,” even if now at a greater dis-
tance than before. Anti-abortion activists did not lose much—and cer-
tainly not as much as Justice Scalia claims—in these decisions.
It could be argued, in fact, that anti-abortion activists were guaran-
teed something of a victory (again despite Scalia’s dire warnings) simply
because the Court chose to see the case as one concerning state inter-
vention into speech rather than one concerning a woman’s right to abor-
tion. As cases concerned with regulating the public forum, with deter-
mining just how to assure minimal state intervention into speech while
guaranteeing order, both Madsen and Hill at once confirm the history of
public forum doctrine—a doctrine designed to protect rights in the ab-
stract rather than address the relations of power that make those rights
necessary—and further solidify the role of the state in promoting a cer-
tain vision of order in democracy. As cases about free speech, Madsen
and Hill will prove troubling to those, like workers engaged in battles
with employers, who now more than ever need to take to the streets to
press their claims through picketing and rallying. Such a vision of order,
as we will see in later chapters, is also deeply troubling for the homeless
who must assemble and sometimes even “speak” in the public spaces of
the city just to survive. Had these cases been decided in terms of pro-
tecting a woman’s right to abortion, however, the cases would prove far
less troubling to those, like the homeless and workers, who must always
seek spaces for representing their demands for the expansion rather
than the denial of rights as a means of solidifying “the ‘best’ aspirations
of a people for the society”—a potential for law that Blomley and Clark
(1990, 435) argued can be made every bit as “plausible” as the coercive
aspects of law that the left is so adept at recognizing. Matthew Arnold
and all his little followers, in other words, could be turned on their
heads and law could be made a means for achieving, rather than thwart-
ing, the right to the city.
Justice Scalia, in a departure from his earlier work on the Court
(see Brisbin 1993), had sought in his dissents to both Madsen and Hill
to make a strong defense of the right to protest despite the potential vio-
lence that such a right necessarily contains. He argued in Madsen that
those who were not “friends of liberty” would seize the powerful
“loaded weapon” the Court had left lying around and destroy precari-
ously held rights.28 And so they did, but not at all in the way that Scalia
had predicted. Rather, less than a month after the Madsen decision, anti-
abortion activist Paul Hill grabbed a loaded gun and murdered Dr. John
Britton and his escort, James Barrett, outside a Melbourne, Florida,
women’s health clinic. This was the second murder in 18 months of a
Florida doctor who had performed abortions. Paul Hill was tried and
convicted under a new federal “access to clinics” law that makes crimi-
nal activity around an abortion clinic a federal crime. Even so, many
prochoice activists have called for stronger regulation of the public fo-
rum. They argue, like the Court before them, that such regulation will
not only save lives (because other criminal statutes are presumably not
enough) but also will allow for a more reasoned debate about abortion.
The Colorado law at stake in the Hill case, and similar laws across the
United States, is the result of such reasoning. But whatever the efficacy
of these laws in the immediate vicinity of clinics, they have done little
to stop the murder of abortion providers, as the assassination of Dr.
Barnett Slepian in his suburban Buffalo home in October 1998 (most
likely by James C. Kopp, who as of this writing is standing trial for the
crime) makes clear.
It seems to me that the strategy of regulating space so as to order
debate—as access to clinic laws attempt to do—falls into exactly the
trap that snared the Supreme Court. It presumes, first, that ideas and ac-
tions are immediately separable (that there can be, for example, a “ratio-
nal” opposition to, or promotion of, abortion that is not linked to the
actions of the holders of these views), and that one can be protected at
the expense of the other. Second, it presumes that the regulation of cer-
tain kinds of (otherwise legal) conduct will protect speech and other
rights. If the historical geography of the public forum—and public
space more generally—shows anything, it is that this is a fallacious as-
sumption, one that assumes a narrow definition of order is in the inter-
ests of all. And since it is not, it will always call up, as we will see in the
next chapter, its own opposition. I am not certain that this is a direction
that progressive activists—those most concerned with struggling for a
right to the city and those who so often have to take to the streets them-
selves in order to be heard—want to turn. Rather, we need to find ways
to enhance positive rights without at the same time increasing the state’s
ability to circumscribe negative rights. The murders of Drs. John Britten
and Barnett Slepian have shown that the regulation of space in the name
of order will do little to detour those who seek to deny the right to abor-
tion by violent means. Nor has such regulation done much to slow the
trampling of labor rights. Indeed, the history of labor and its use of pub-
lic space shows, on the contrary, that such regulation might do much to
help those who would undermine the rights of others.
To explore this point more fully, it is useful to turn away from labor
and abortion to a specific struggle for the right to gather and speak in
public space: the 1964 Free Speech Movement and the subsequent tur-
moil in Berkeley, California. In the struggles in and for Berkeley during
the 1960s we can glimpse just how important space is for any decent
right to the city. We will also see that no matter how hard various agents
of the state—including the courts—work to make dissent safe for de-
mocracy, a vigorous democracy must ever be one in which dissent ex-
ceeds the bounds placed on it, one in which people do not just go again
to Hyde Park but rather actively take Hyde Park and make it into some-
thing altogether new.
NOTES
1. To my knowledge, this opinion has not yet been applied to cases concern-
ing panhandling (see Chapters 5 and 6). It does seem, however, to provide
the perfect language for upholding the sort of anti-homeless bubble laws
that have become prominent in recent years in American cities. These laws
prohibit panhandling around automatic teller machines, around doorways
to businesses, or around cars. Many aggressive panhandling laws specifi-
cally outlaw following, “dogging,” or “approaching” people who do not
want to be panhandled, just as does the law adjudicated in Hill. A review of
the relationship between urban geography and free speech jurisprudence
as it relates to panhandling can be found in Mitchell (1998a).
2. Colorado’s statute, FACE, and other similar laws address only a small part
of the problem. Women’s effective right to abortion is blocked in numerous
other ways, ranging from a shortage of abortion clinics (and their uneven
geographic distribution, which means some women have to travel hun-
dreds of miles to receive an abortion) to a rapidly declining number of doc-
tors trained in the procedures, to laws restricting certain surgical proce-
dures, to parental notification laws that deter under-18-year-old women
from seeking abortions, to laws restricting the use of public funds to pay
for abortions or abortion counseling. One of the key themes of this volume
is that a right is only a right to the degree that it is practiced as such: paper
rights are no rights at all unless people can—or struggle to—engage in the
behavior that is putatively protected. Encoding rights in law is important
and necessary, but it is not anywhere near sufficient. No clearer example of
this maxim can be found than the case of abortion in the United States.
3. One can still support the majority’s desire to find ways to protect and pro-
mote a woman’s right to abortion while admitting that Justice Antonin
Scalia is in fact correct when writing in dissent that the Colorado statute
restricts a person’s activities based on “what he intends to say when he” ap-
proaches a woman entering a health clinic (Hill 2000, 2503, emphasis in
original). As we will see, this is precisely why “time, place, and manner”
restrictions on the right to speech and assembly are so interesting, so im-
portant, and so frequently violated.
4. The interesting thing about both these cases is that, while the Court was
sharply divided, both sides—the more liberal branch seeking to regulate
protest around clinics so that women would be relatively free from interfer-
ence from protesters and the more conservative side hoping to discourage
the right to abortion—drew on public forum doctrine to make their case.
The conservatives, headed by Antonin Scalia, argue that both cases “like
the rest of our abortion jurisprudence . . . is in stark contradiction to the
constitutional principles we apply in other contexts” (Hill 2000, 2503).
That is, Scalia argues that the Court regularly sets aside public forum doc-
trine when it suits their purpose. He is certainly right, as we will see, but
the issues are far more complex than his polemic lets on.
5. In some instances private property can assume the function of a dedicated
public space, though the owners of this property typically retain an even
greater proprietary right to shut out the public—or to regulate even the
content of speech.
6. Scalia is absolutely right when he warns in Madsen (1994, 2508) that the
“labor movement, in particular, has good cause for alarm” at the Court’s
decision, though his own history is rather truncated and does not ac-
knowledge that the labor movement, in particular, has almost always had
good cause for alarm since so much First Amendment jurisprudence has
developed precisely as a means of neutralizing workers’ dissent to capital-
ism.
7. Current examinations of the ways that public space reinforces normative
heterosexuality reveal that such exclusions of normative “irrationality”
have not been left behind. For an important and insightful account of the
relationship between “the closet” and the public and private spaces
through which it is materialized, see Brown (2000).
8. The politics of visibility is always complex. While it is true that publicity
has been a critical factor in the extension of women’s rights and gay rights
(to name just two), so too has it often been the case that privacy is a pre-
condition of the development of gender and sexual identities (see Chauncy
1994; Hubbard 1998, 2001).
9. This formulation, and its roots in Lefebvre’s arguments about the produc-
tion of space, will be explored in greater detail in Chapter 4.
10. Obviously this line between “unruly” and “violent” has become even more
significant following the wake of the terrorist attacks on the World Trade
Center and the Pentagon. In their wake, anticorporate globalization activ-
ists immediately began debating whether or not to continue protesting
against such institutions as the World Bank and the International Mone-
tary Fund for fear that their street theater (and the occasional small-scale
violence that accompanied it) would draw a disproportionately brutal re-

sponse from the state. Such a fear was, of course, not ungrounded, given
the killing of a protester by police in Genoa in the summer of 2001 and the
widespread indiscriminate arrests in Quebec City in April of that same year
(including the arrest, on weapons charges, of activists who catapulted
stuffed animals across the fence constructed to keep delegates to the Free
Trade Area of the Americas summit well out of sight).
11. This is the reason, also, that much Gramscian-inspired work is off the
mark when it sets up “consent” and “coercion” as opposites (where one is
resorted to when the other fails) rather than always dialectically entwined
and in fact inseparable. Gramsci (1971, 12) himself contributed to this er-
ror by arguing that “state coercive power . . . ‘legally’ enforces discipline on
those groups who do not ‘consent’ either actively or passively.” This is true,
but it is also a special case. Both violence and discipline are ubiquitous (as
Foucault so persuasively showed).
12. This, of course, is also one of the main implications of Granscian notions
of hegemony (Gramsci 1971; see also Williams 1977).
13. As we will see, these novel forms are often formative of public forum doc-
trine for the simple reason that judge and legislators as regulators of public
order—and legitimators of the state—must respond to these protests and
find ways to account for them and to bring them into the fold of the state
itself.
14. Mona Domosh’s (1998) analysis of the “polite politics” that ruled New
York public spaces in the second half of the 19th century confirms this
point in its analysis of the small, often quite invisible, ways in which
upper-class women and men “resisted” their domination in public space.
15. Injunction contempt proceedings do not require a trial by jury, adherence
to standard rules of evidence, nor even a showing that violence or other
sanctionable activities had occurred.
16. The IWW specifically attacked injunctions controlling workers’ protest
behavior, arguing that the courts were simply puppets of the capitalist class.
Thus, part of its official policy declared: “Strikers are to disobey and treat
with contempt all judicial injunctions” (see Industrial Relations 1916, Vol.
11, 10578).
17. For a case study of one such controversy (in Denver in 1913) that places
the legal struggle over and the production of public space within the con-
text of a complex politics of scale related to regional development, see
Mitchell (2002).
18. The IWW was eventually suppressed and all but destroyed by the federal
government—with a great deal of help from California state agencies (in-
cluding one run by the nephew of Harris Weinstock, the San Diego investi-
gator)—during World War I. See Dubofsky (1988); Foner (1965); Mitchell
(1996a); Preston (1963).
19. In this move we can see the roots of the distrust of rights that animates
such commentators as Tushnet and Rorty, as discussed in Chapter 1.
20. The bad tendency doctrine derives from English common law of libel. For
two examples of Holmes’s use of the bad tendency test before Schenck, see
Patterson v. Colorado (1907) and Fox v. Washington (1915).
21. Even as free speech doctrine has been liberalized over the course of the
past century (see below), this particular theory has, if anything, been ex-
panded. As courts have sought to “balance” the right to speak with a set of
other state concerns, the result has been a spatial regime of regulation in
which people can say just about whatever they want, just so long as it is
never heard in such a way as to make a difference. In the United States, the
right to speech does not seem to entail a right to be heard. I analyze this
dynamic in Mitchell (in press).
22. The family resemblance between the specific geography of protest and con-
trol in this case and that regulated by contemporary “bubble laws” is clear.
23. Mark these words. They were rather closely echoed in a series of cases in
the last decades of the twentieth century seeking to criminalize the behav-
ior of homeless people (Mitchell 1998a; see Chapters 5 and 6).
24. A week later Taft lost both Holmes’s support and that of Louis Brandeis
(the other great liberal Justice to whom much public forum doctrine is
traced) in a similar case (Truax v. Carrigan 1921). The dividing issue here
was not whether the politics of the street could be prohibited but rather
whether the federal judiciary should allow states to experiment more
widely in loosening strictures on street politics if such experimentation
might lead to a greater risk of disorder (see Cover 1981, 361–363).
25. Significantly, DeJonge was a labor case. Dirk DeJonge was arrested for crim-
inal syndicalism (an old law meant to wipe out the Wobblies) when he
helped organize a Communist Party-sponsored meeting protesting police
shootings and raids on homes of striking longshore workers.
26. And, one might add, with the lavish attention that the media as a whole
pays to various advertising campaigns and events (such as the annual me-
dia frenzy over Super Bowl advertising), an ad campaign can now expect to
be amplified across the range of media, assuring that even those who, for
example, do not watch TV are fully apprised of what is being advertised,
when, and how.
27. It should be noted that the strongest restrictions on speech upheld in
Madsen were around private residences and hinged on questions of private
property and not speech or assembly per se.
28. In Hill he argued that it was the Supreme Court itself that had grasped this
“loaded weapon.”
3
From Free Speech

to People’s Park
Locational Conflict and the Right
to the City
How much farther do we have to go to realize this is not just

another panty raid?
—GOVERNOR RONALD REAGAN (May 20, 1969)
Conflict over rights often resolves itself into conflict over geography, as
the Supreme Court’s evolution of public forum doctrine has made plain.
Space, place, and location are not just the stage upon which rights are
contested, but are actively produced by—and in turn serve to struc-
ture—struggles over rights. Conflict over rights can therefore be under-
stood, at least in part, as a species of locational conflict.1 Rights have to
be exercised somewhere, and sometimes that “where” has itself to be ac-
tively produced by taking, by wresting, some space and transforming
both its meaning and its use—by producing a space in which rights can
exist and be exercised. In a class-based society, locational conflict can be
understood to be conflict over the legitimacy of various uses of space,
and thus of various strategies for asserting rights, by those who have
been disenfranchised by the workings of property or other “objective”
social processes by which specific activities are assigned a location. In
this sense, locational conflict is often symbolic conflict, in that the con-
flict is waged through the deployment of highly symbolic actions. That
81
is, it is waged through a combination of speech and action—the two

things the Supreme Court works so hard to keep apart. In fact, the very
space of struggle itself comes into being and is defined in locational
conflict because speech (communication) and action (conduct) are sim-
ply inseparable. Further, and again because speech and action are insep-
arable, geography matters.
That might seem axiomatic, or in fact just tautological—that in
locational conflict geography matters—but it is surprising how often it
is forgotten that in any kind of social struggle, even struggles regarding
place and location, geography, or more precisely the ongoing history of
locational conflict, is simply forgotten. Take, for example, a recent arti-
cle in The Chronicle of Higher Education detailing what the paper sees as
a new trend in speech codes: the development of specific “free speech
zones” on college campuses (Street 2001).2 More and more campuses,
according to the Chronicle, are developing specific places in which free
speech is allowed and restricting it in others as a means of balancing
“between universities cherishing the right to free speech and needing to
run an institution,” as a Dean of Students from UC Berkeley puts it
(Street 2001, A38). The Chronicle argues that the development of such
zones continues a history of debate over speech codes that erupted in
the 1980s when several universities attempted to regulate hate and
other harassing speech. Many of these codes were struck down by the
Supreme Court, and universities thus turned to public forum doctrine
to assert their legitimate right to regulate the “time, place, and manner”
of speech. There is nothing particularly wrong with this history until
the paper asserts that “Tufts University may have been the first [to cre-
ate a free speech zone]. In 1989, the university, in an attempt to restrict
so-called hate speech, designated ‘free speech zones’ in certain areas of
the campus” but quickly dropped the policy when students protested
(Street 2001, A38).
The problem with this account is that, despite the fact that the
1964 Berkeley Free Speech Movement (FSM) is referenced in several
places in the article, the spatial history of that movement—the very fact
that the movement erupted in part as a result of the university’s attempt-
ing to create and enforce specific free speech zones, what the university
called “Hyde Park areas”—is lost. That history, as we will see, not only
was concerned with the right to speak but also developed as a struggle
for an appropriate place to speak. Lost too in the Chronicles account is
the fact that nearly all California public universities quickly developed
From Free Speech to People’s Park 83
specific free speech zones—often in heavily trafficked locales—in re-

sponse to the Berkeley FSM. Tufts was not first university to demarcate
a free speech zone on campus, though it may be the case that the spe-
cific politics of regulation driving the current wave of zone demarcation
is different than it was in the 1950s and 1960s.3
Exploring one of these earlier attempts to zone speech, and the fa-
mous reaction it called up, the Free Speech Movement, will help us see
that by examining conflict over speech as conflict over location we can
learn a great deal about how rights are fought for, claimed, undermined,
and reinforced in “actually existing capitalism.” Let us delve, therefore,
into the specific spatial history of the Berkeley Free Speech Movement
in particular, and the changing radical politics of Berkeley in the 1960s
more generally. Doing so will shed a good deal of light on current at-
tempts to zone speech and conduct, attempts often couched not as a
means of eliminating dissent but of promoting “quality of life.”
NONCONFORMISTS, ANARCHISTS,
AND COMMUNISTS: FREE SPEECH IN BERKELEY
As a semipublic property, as something like a “dedicated public space”

(in the language of the Supreme Court’s public forum doctrine), the UC
Berkeley campus became an early staging ground in the battles over the
redefinition of political, property, and social rights that wracked Berke-
ley (and the nation) in the 1960s. Clark Kerr, the president of the Uni-
versity of California from 1958 to 1966 (when he was removed from
office in one of Governor Ronald Reagan’s first official acts), understood
what was at stake in the first militant battles over free speech at Berke-
ley in 1964:
A few of the “non-conformists” have another kind of revolt [than one

against the university] in mind. They seek instead to turn the university,
on the Latin American or Japanese models, into fortresses, from which
they can sally forth with impunity to make their attacks on society.
(quoted in Draper 1966, 206)
For his part, Kerr had a rather different vision for the university in mod-
ern society.4 Writing in The Uses of the university, Kerr (2001 [1963])
saw the university and surrounding community as being, in part, a labo-
ratory for the creation of a new and more rational society. The univer-
sity had an important role to play in the drive toward a rational and
managerial political economy. Relabeled by Kerr, the “multiversity,” the
university was to specialize in the “production, distribution and con-
sumption of ‘knowledge’ ” even as the surrounding city was to be recon-
figured to more efficiently reproduce the “workers” who were to per-
form this production, distribution, and, to a large extent, consumption
of knowledge.5
Kerr’s vision, however, extended well beyond the university and its
immediate neighborhood. He was just as keen to describe the new soci-
ety that was coming to fruition at mid-century. In this new society, Kerr
wrote in Industrialism and Industrial Man (Kerr et al. 1960), politics too
would be made rational or, more accurately, managerial. Men and
women “can be given some influence” in the new society, Kerr intoned.
Society has achieved consensus and it is perhaps less necessary for Big
Brother to exercise political control. Nor in this Brave New World need ge-
netic and chemical means be employed to avoid revolt. There will not be
any revolt anyway, except little bureaucratic revolts that can be handled
6
piecemeal. (Kerr et al. 1960, 295).
Such pronouncements—which seem to accord rather well with the po-

litical pessimism of the later postmodern, post-structuralist left—at the
time drew immediate fire from around the globe. Guy Debord (1994
[1967], 137–138), for example, attacked Kerr directly in his 1967 mani-
festo, The Society of the Spectacle, asserting that Kerr’s vision was exactly
what had to be fought against if people were ever to regain control over
their own alienated lives and learn once again to live in the city.
Closer to home, Kerr’s vision was enacted in part through the Uni-
versity of California’s attempts, beginning in the early 1950s, to gain
control of the South Campus area (centered around Telegraph Avenue),
both for campus expansion and to better control the mix of residential
and business functions. A 1952 Long-Range Plan proposed that the uni-
versity expand into the South Campus area as part of a large city-wide
redevelopment program that was aimed at addressing the “blighted”
sections of the city. Students and the elderly who lived there were not
expected to mount a particularly effective opposition to the purportedly
benign plans of the university and the city. As the journalist Robert
Scheer (1969, 43) later contended, the bureaucratic motives of the ad-
ministration were
. . . based on assumptions about the purpose of the University and the role
of its students. South Campus expansion was based on the presumed need
to sanitize and control the University environment. The university com-
munity which the Development Plan envisioned was one of a total envi-
ronment in which every need—classrooms, housing, recreation and park-
ing—was programmed for ten years into the future. Students would
literally be forced to dwell within an ivory tower of concrete and glass dor-
mitories which—along with other official buildings, churches and a few
spanking new store fronts properly up to code—would be the only struc-
tures permitted in the central South Campus area. All others would be
pushed out by the University Regents exercising their power of eminent
domain. This would, as the Development Plan (1956 revision) noted, pro-
vide “a well-rounded life for students. . . . ” If the Multiversity was to be a
knowledge factory, South Campus would be its company town.
Just this vision of the university and city as a rational technical and effi-
cient future, carefully managed by competent and well-trained bureau-
crats working in the interest of society, became the focus of revolt and
popular rebellion in Berkeley in the 1960s rebellion for which the Free
Speech Movement is often presented as the opening act.
But the FSM was not simply a spontaneous, massive, inexplicable
act of refusal (as many histories have it). Instead, the FSM which shook
the Berkeley campus during the fall of 1964 was a climax of a grow-
ing—actually rejuvenated—and ever more militant movement against
the dictates of a class- and race-based society that refused to grant
blacks, workers, and students those rights that were supposedly the
very foundation of its existence. By 1964, Berkeley already had a long
history of student activism. The 1930s, for example, saw significant stu-
dent organizing, often led by Communist Party members and their al-
lies, in support of striking farmworkers, longshore workers, and other
militant unionists around the state. So too were many students (and fac-
ulty) involved in broader “popular front” organizing. In the 1950s the
loyalty oath controversies had seen significant student support for resis-
tant and fired faculty. By 1957 a radical student party, SLATE, had
formed. And Berkeley students, like their counterparts in many other
northern universities, were involved with civil rights struggles, labor
struggles, anti-McCarthy actions, and fledgling new-left organizations
such as the Students for a Democratic Society throughout the late 1950s
and early 1960s.7
Be that as it may, proximate causes were important. FSM was in
part a clear revolt against the increasingly restrictive policies of a cam-
pus administration, directed by Clark Kerr as president of the whole
university system, that viewed itself as a center of liberal (capitalist) in-

tellectualism. The American public university campus—and the Berke-
ley campus in particular—had always been a tightly controlled space. In
spite of the history of free speech struggles in the first two decades of
the 20th century that forced a reconsideration of laws governing public
space, the public universities of California continued, as late as 1964, to
operate as if restrictions on the political activities of their students both
on and off campus were not only their right but also their mandate.
Somewhat unusually among large public universities, the University of
California retained the belief that paternalistic in loco parentis was a via-
ble and necessary ideology of social control over students.8 As Colum-
bia University Professor Robert Paul Wolff (1966: 38) wrote in response
to an angry article critical of FSM by former Berkeley Professor Lewis
Feuer (1966): “In a morally sound society, the university can and should
be a sanctuary of scholarship, a school for citizenship, and a validator of
the dominant values of the political community.” Through a series of
rules and regulations designed to severely proscribe what could be said
on campus—and where it could be said—this was exactly what the Uni-
versity of California was attempting to do. Among the many issues at stake
in the FSM at Berkeley was the question of what was moral and who had
the right to determine that morality. But, even so, the movement re-
solved itself, quite explicitly, into a question of the right to space. Free
speech at Berkeley, as with free speech anywhere, was a spatial problem.
The Geography of Free Speech 1: Context

The Berkeley campus in the 1960s was growing rapidly. The traditional
edge of the campus was Sather Gate on Telegraph Avenue (Figures 3.1
and 3.2). In 1960 and 1961 new campus buildings, housing the book-
store, student union, student government, restaurants and coffeehouses,
were opened just outside Sather Gate. Telegraph Avenue was closed at
Bancroft Way, and the former street was converted into a large plaza.
Overlooking the plaza—indeed, dominating it—and also outside the
Gate was the main building of the system-wide administration, Sproul
Hall (Figure 3.3). Sproul Hall had been deliberately built outside the
Berkeley campus in 1940 to symbolize the independence of the campus
administration housed on the Berkeley campus proper from the university-
wide administration now housed off-campus; the 1960 expansion of the
campus, therefore, incorporated the system-wide administration back
FIGURE 3.1. An aerial view of the UC Berkeley, 1965. The campus expanded rap-
idly southward (to the right in this picture) in the postwar period, stretching be-
yond Sather Gate (# 4). The complex of buildings labeled #1 are the student union
buildings built in the early 1960s. #2 is Sproul Hall, now part of the Berkeley cam-
pus; Sproul Plaza is #5. The plaza the Berkeley administration wanted to designate
as the “Hyde Park area” is below #1 in this picture. Photograph originally published
in Heirich (1971).
FIGURE 3.2. Sather Gate, the traditional entrance to the Berkeley campus. The
view is to the south from inside the “old” campus toward the new developments of
the 1950s and 1960s. The building in the background is the Associated Students
center. Sproul Hall is out of the picture to the left; the plaza through the gate and be-
fore the student center is Sproul Plaza. Photograph by author.
87
into the campus itself. The land upon which the plaza was built was
ceded to the university by the city at the time of the street closure. Addi-
tionally, the university was engaged in an aggressive program of build-
ing student dorms off-campus several blocks south of Sather Gate, in
the center of the “blighted” South Campus area (Heirich 1971; Scheer
1969).
All this detail is important because the city street in front of Sproul
Hall had for a long time been a traditional off-campus free speech area.
Student and community activists had long used it as a rallying ground.
Indeed, it was the most important political forum in the city. But now it
had been incorporated into the campus itself and was thus not subject
to the regulations of a “traditional public forum”; instead, the rather
more restrictive rules allowed a “dedicated public forum” obtained. Not
that the university was much concerned with the niceties of public fo-
FIGURE 3.3. Sproul Hall. Long the home of the university-wide administration,
Sproul Hall had been built outside Sather Gate to help reinforce the Berkeley cam-
pus’s relative autonomy vis-à-vis the administration of the university as a whole.
Campus development during the 1950s and 1960s engulfed Sproul Hall, and Tele-
graph Avenue in front of it was closed to create Sproul Plaza. The steps of the hall
and the plaza are the locus classicus of the Free Speech Movement and remain to this
day the central site for political activity on the Berkeley campus. The university ad-
ministration moved several blocks off-campus in the 1970s and further decamped
to Oakland in the 1980s. Photograph by author.
rum law: it had no qualms about regulating either particular activities

(conduct), such as soliciting donations, or the very content of on-
campus speech. The university reserved the right to approve content (to
assure it was “appropriate”), and it banned the recruiting of members to
partisan causes. It may be no accident that this change in the status of
the space in front of Sproul Hall occurred just as political activism was
heating up in reaction to the conservative but benign hegemony of the
Eisenhower administration and the continuing and far less benign ac-
tions of the House Un-American Activities Committee and entrenched
anti-civil rights racists in both the South and the North.
Three issues had emerged by the late 1950s that made the adminis-
tration wary of allowing political activity on the land that it controlled.
Within the university, there was increasing agitation to abolish compul-
sory ROTC (Reserve Officer Training Corps) for male students. Within
California, both state and national House Un-American Activities Com-
mittees were becoming more aggressive again after a slight lessening of
activity in the mid-1950s.9 And nationally students were becoming ac-
tive in the civil rights movements in the South and in other liberal and
leftist causes, and they were beginning to bring that activism back to
their campuses in the form of the demand that the same rights being ag-
itated for in the South be extended to students at the university. The in-
creasing assertiveness of students on these issues, coupled with a Uni-
versity of California administration (and Board of Regents) that was
increasingly defining the role of the university as an institution in ser-
vice of the economy and the society, suggested to university officials
that clear guidelines on “appropriate political behavior” of students
needed to be established.
Since 1938, student political activity had been guided by “Rule 17,”
which required presidential approval of off-campus speakers and for the
use of university property by nonrecognized groups.10 Additionally,
Rule 17 forbade the collection of funds on campus by any student or
nonstudent group. In October 1957, a new “liberalized” interpretation
of Rule 17 was offered by the university administration in response to a
year’s agitation by various student groups. The new interpretation,
which became a center of controversy in 1964, allowed off-campus
groups composed entirely of students to use campus facilities provided
that the dean of students approved the use at least a week in advance.
All promotional material also had to be cleared through the dean. Any
necessary services, such as police protection (which the university re-
quired), were to be paid for by the sponsoring group. Off-campus

speakers no longer had to be approved by the president, but they did
have to be approved by the dean, a faculty or senior staff advisor, and
occasionally an appropriate departmental chair. Finally, off-campus
groups were not allowed to solicit for either funds or membership
(Heirich and Kaplan 1965, 19). It was obvious that the administration
felt that it was its right and duty to continue to monitor closely the po-
litical activities of the students in the UC system, even if such monitor-
ing was now removed from the president’s office. At the same time, as
the campus spread south, the traditional “free speech” area was abol-
ished, although political activity was allowed on a strip of sidewalk
opposite Telegraph Avenue on Bancroft Way (Figure 3.4). With this
arrangement, speakers were presumably off university property, but
audiences at rallies and speeches often spilled into Sproul Plaza.
The 1957 liberalization of restrictions on political activity were
soon tightened back up when, in the fall of 1959, UC President Clark
Kerr released what came to be known as the Kerr Directives. The Kerr
Directives forbade student governments from speaking on “off-campus”
issues, made the governments and student organizations directly re-
sponsible to the chancellor’s office on each campus, provided that any
amendments to government or organization constitutions be approved
by campus officials, and required that all student organizations have a
tenured faculty advisor (Heirich and Kaplan 1965). In October 1960,
the UC administration arranged to have the editor of the student news-
paper, The Daily Californian, removed for supporting student govern-
ment candidates who were opposed to the policies of the administration
on issues of free speech and the ROTC. The following April, the chan-
cellor of the Berkeley campus issued a new set of rules that prohibited
persons “unconnected to the university” to post, distribute, or exhibit
literature on campus. Throughout the next 2 years, the university ad-
ministration at both the campus and system level was engaged in con-
stant clarifications and reclarifications of what appropriate on-campus
political activity was. Most consistently, throughout these constant revi-
sions, the administration reserved for itself the right to control both the
content and the form of political activity on campus.
The development of student political consciousness on campus,
and the continued attempt by the UC administration to maintain and
solidify its control over political activity on campus, occurred concur-
rently with a series of social changes in the South Campus area, changes
FIGURE 3.4. A photograph indicating one of the plaques on the sidewalk along
Bancroft Avenue at Telegraph Avenue. The area in front of the plaque is city prop-
erty. Behind the plaque, stretching to Sather Gate, is the portion of Telegraph Ave-
nue ceded by the city to the university when the student union was built. Before the
Free Speech Movement, speakers would often stand on the city portion of the side-
walk and speak to crowds on university property. This is one of the practices the
university sought to halt in the fall of 1964. Photograph by Lyn and John Lofland,
originally published in Heirich (1971); used by permission.
that the administration saw as at least as threatening as those posed by

students demanding a political voice. At the university’s request, the
city of Berkeley had dutifully conducted a study that declared the South
Campus area to be “blighted”—a blight made all the more menacing by
the realization that “Telegraph Avenue [had come] to rival San Fran-
cisco’s North Beach as the vital center of the Beat Generation . . . ”
(Scheer 1969, 43). The idea that South Campus was blighted was rein-
forced by the growing “counterculture” centered on Telegraph, a coun-
terculture that seemed to be as pernicious as it was attractive to students
and other youths. Robert Scheer rather caustically remarked after the
People’s Park riots of 1969 (discussed later in this chapter) that the
South Campus area, by the early 1960s, had come to be understood by
the authorities of California
as a watering hole gone bad. . . . Perfectly decent young men and women
attending what was supposedly the star attraction of the whole state uni-
versity network were turning out to be politically and socially deformed,
causing trouble for parents and politicians alike. And it all seemed to have
something to do with a place called Telegraph Avenue where “they” prac-
ticed fornication, smoked marijuana, wrote leaflets, mobilized protests,
and read sinister revolutionary tracts. (Scheer 1969, 43–44)
A more “sober-minded” analyst, and an opponent of Scheer’s, sug-

gested essentially the same thing. Quoting Max Weber, Seymour Lipset
argued that students, precisely because they were young, lacked an
ethic of responsibility: they were not accountable for the consequences
of their actions. As Lipset wrote in the wake of the Free Speech upris-
ings: “University students, though well educated, have generally not
established a sense of close involvement with adult institutions; experi-
ence has not hardened them to imperfection. Their libidos are unan-
chored . . . ” (Lipset 1965, 9).11 And Heirich (1971) later argued that the
explosive combination of environmental change (on campus) and envi-
ronmental disorder (in the South Campus area) with youthful segrega-
tion and premature autonomy were responsible for what he called the
“unreasonable” nature of protest in Berkeley in 1964. The transforma-
tion of South Campus into a haven for “beats” and student organizing
suggested to the university that in loco parentis was breaking down, and
the university was at a loss to explain its demise. By the mid-fall of 1964
it actually didn’t much matter if the university could explain what was
happening or not, for by then it was fighting a rear-guard action against
the wild youths with their unanchored libidos—or more accurately
against a committed group of politically savvy and well-organized stu-
dents who were quickly gaining support from the larger masses of their
heretofore less politically active colleagues. The crisis, however, was of
the university’s own making.
The Geography of Free Speech 2: The Free

Speech Movement
On September 16, 1964,12 all student organizations received a letter
from the dean of students, Katherine Towle, informing them that the
26-foot strip of sidewalk along Bancroft Way, which had become the de
facto free speech area when Sather Gate was engulfed by the campus,
would no longer be available for proselytizing and fund-raising (see
Figure 3.4). The strip of land was legally university property and as
such was subject to the same regulations and restrictions as other parts
of campus. The university justified its actions by pointing out that it
had lifted a ban on scheduled outside speakers and had established a
“Hyde Park” area as an open forum for students and staff in the plaza
below the Student Union (Figure 3.5).
The problem with the university’s new “Hyde Park” area was that it
was, quite literally, out of the way. For exactly that reason it was unac-
ceptable to students and their supporters in the community and among
staff and faculty, even though it was seen as a convenient solution by the
administration. Responding to this new and geographic restriction on
public speech, students, working through organizations as diverse as
the leftist CORE (Congress of Racial Equality), SNCC (Student Nonvio-
lent Coordinating Committee), and SDS and the right-wing Young Re-
publicans and Students for Goldwater, protested and engaged in a pro-
gram of open defiance of the ban.
FIGURE 3.5. The plaza below the student center that the administration desig-
nated in the midst of the Free Speech Movement to be a “Hyde Park area.” Even
with a pub featuring outdoor seating at the edge of the plaza and the Zellerbach Au-
ditorium concert hall, the plaza remains a place where relatively few people gather
or linger. Photograph by author.
Early entreaties to the Berkeley administration by the united stu-

dent groups asked for the reinstatement of students’ and others’ right to
set up tables and distribute political literature on the sidewalk at
Bancroft and Telegraph Avenues. Student leaders also announced plans
to contact lawyers who would consider taking legal action against the
university. Dean Towle hinted that political leafleting and tabling might
be allowed in the existing “Hyde Park” area, but students once again re-
iterated the unacceptability of the lower Sproul Plaza as a political
space. On September 18 a coalition of 18 student organizations pre-
sented to Dean Towle, in the form of a petition, what amounted to a set
of “time, place, and manner” rules to govern the Bancroft–Telegraph
sidewalk. This petition was rejected. In response, on September 20, the
students voted to engage in a course of civil disobedience if the univer-
sity remained firm in its ban on political activity after a meeting with
the dean the following morning.
On September 21, Dean Towle acceded to many of the students’ de-
mands—but not all of them. She announced that tables and leafleting
would be allowed on the Bancroft–Telegraph sidewalk but that only “in-
formative” (and not “advocative”) literature could be distributed; that
fund-raising would not be permitted; and that “recruiting” people to or-
ganizations would not be tolerated. As Towle put it: “It is not permissi-
ble, in materials distributed on University property, to urge a specific
vote, call for direct social or political action, or to seek to recruit indi-
viduals for such action.”13 Simultaneously Dean Towle announced that
a “second” Hyde Park area would be established—on an experimental
basis—on the steps of Sproul Hall. Here only students and university
staff could speak: “Since the university reserves such areas of the cam-
pus for student and staff use, those who speak should be prepared to
identify themselves as students or staff of the university.”
The students rejected the concessions and announced plans to en-
gage in civil disobedience. As one student organizer, Jackie Goldberg,
put it:
[T]he University has not gone far enough in allowing us to promote the
kind of society we’re interested in.
We’re allowed to say why we think something is good or bad, but we’re
not allowed to distribute information as to what to do about it. Inaction is
the rule, rather than the exception, in our society and on this campus.
And, education is and should be more than academics.
We don’t want to be armchair intellectuals. For a hundred years, people

have talked and talked and done nothing. We want to help the students
decide where they fit into the political spectrum and what they can do
about their beliefs. We want to help build a better society.
Dean Towle argued that the “nonadvocacy” position was part of univer-
sity-wide policy and as such was something the Berkeley administration
was powerless to change. About 75 students, unswayed by this logic,
held an all-night vigil on the steps of Sproul Hall.
Other students, working through the Senate of the Associated Stu-
dents of the University of California (ASUC), petitioned the Board of
Regents the next day “to allow free political and social action to be ef-
fected by students at the Bancroft entrance to the University of Califor-
nia, up to the posts accepted as the traditional entrance.” Open defiance
of the nonadvocacy provisions announced by Dean Towle began. On
September 27, in part as a response to an unforgiving statement by UC
President Clark Kerr, students announced that the following day, during
a University Meeting, they would establish tables on the sidewalk at
Sather Gate and hold a rally at Wheeler Hall without properly notifying
the administration.
At the September 28 University Meeting, Berkeley Chancellor Ed-
ward Strong announced a number of concessions to the Free Speech
protesters. Among others, these concessions included allowing limited
forms of advocacy (e.g., promoting a “yes” or “no” vote on initiatives,
and distributing campaign bumper stickers and buttons). Students in-
terpreted this reversal from the policy announced by Dean Towle only a
few days earlier as a direct result of their picketing and rallying. The
next day, a number of groups set up tables both at Sather Gate and at
Bancroft–Telegraph. Only a few of these groups had secured the proper
permits from the dean of students. Under the new policy announced by
Chancellor Strong the day before, only groups that “promised not to so-
licit money or members, or initiate or advocate any off-campus activity
other than voting” would be issued permits, and most groups simply re-
fused to make this promise.
The following day, September 30, 1964, the situation exploded. In
the early afternoon, five students staffing tables were requested to ap-
pear before the dean of men at 3 P.M. for violating university regulations:
none had permits and some were collecting money for off-campus polit-
ical activities. More than 600 students quickly signed a statement saying
that they had been equally responsible for staffing tables and that they
too should be required to meet with the dean of men. At 3 P.M., some
300–500 students appeared outside the dean’s office in Sproul Hall, with
some, including the soon-to-be-famous Mario Savio, Arthur Goldberg,
and Sandor Fuchs, taking up a position on an exterior balcony and ex-
horting passing students to join the demonstration.
In response to the demand that all those who had signed the state-
ment claiming to have violated university policy be treated equally, the
dean of men responded that the administration would cite only those
“observed” breaking university policy, but he agreed to meet with the
five who had been cited plus Savio, Goldberg, and Fuchs at 4 P.M. All
eight refused to appear, and students decided to continue occupying
Sproul Hall through the night. Around midnight Chancellor Strong is-
sued a statement first asserting that UC students were more free than
any others to engage in political action and then indefinitely suspend-
ing all eight students. In the early hours of the morning, after christen-
ing themselves as the Free Speech Movement, the occupiers of Sproul
Hall ended the sit-in. Student organizers, with Savio as their spokes-
man, announced a rally for noon that day, October 1, on the steps of
Sproul Hall.
As organizers were posting flyers announcing the rally, two tables
were set up on Sproul Plaza at the bottom of the Spoul Hall steps. One
of those tables was staffed by Jack Weinberg, a former student. When
two deans asked him to provide identification, Weinberg refused to do
so. He also refused to leave the table, whereupon a police lieutenant ac-
companying the deans arrested him. Students in the area protested,
chanting “release him, release him,” and perhaps two hundred lay down
on the pavement all around the police car he was being taken to so that
it could not leave Sproul Plaza. After Weinberg was placed in the car,
Mario Savio climbed on its roof (after first carefully removing his shoes)
and implored students and others in the area to join the protest (Figure
3.6). Students maintained their vigil around the police car—with Wein-
berg inside it the whole time—for 32 hours. A rotating group of student
leaders climbed to the top of the police car to make demands upon the
university, while a phalanx of protesters reoccupied Sproul Hall. When
campus and city police tried to close Sproul Hall at about 6:15 P.M. on
the first day of the standoff, about 2,000 protesters rushed the doors,
knocking at least two police officers out of their way, and occupied the
hall in an uneasy standoff with police. Some hours later, at the request
FIGURE 3.6. Mario Savio addressing the crowd from the roof of the police car
that held Jack Weinberg, October 1, 1964. Photograph by Ron Enfield.
of students gathered in the plaza, those in the hall returned outside and
relinquished the building to the police and administration, where protest
leaders, working in a closed session, worked out a plan for ongoing civil
disobedience at least through October 3, UC Berkeley’s “Family Day.”
Despite counterprotests by those opposed to the student activists
(and the kindling of a near-riot as contending groups jostled with one
another), and despite growing cracks in the cross-ideological coalition
that had formed originally to protest restrictions on speech and political
activity, Free Speech activists maintained their vigil at the police car.
Governor Pat Brown announced his support of the university and cam-
pus administrations, and Chancellor Strong announced that the pro-
tests, in fact, were not about free speech: “Freedom of speech by stu-
dents on campus is not the issue. The issue is one presented by
deliberate violations of University rules and regulations by some stu-

dents in an attempt to bring about a change of the university policy pro-
hibiting use of University facilities by political, social and action
groups.” Consequently, Strong and UC President Kerr determined dur-
ing the morning of October 2 to attempt to regain control of the plaza.
With the support of the governor’s office, Strong and Kerr agreed that at
6 P.M. that evening the protest would be declared an unlawful assem-
blage, and if protesters did not voluntarily disperse, police would force
them out. By 4:45, some 500 police officers from a range of Bay Area
and state authorities marched to the campus and took up positions near
Sproul Hall. The protest crowd grew in response—to perhaps as large as
7,000. A confrontation seemed likely.
Chancellor Strong and President Kerr agreed to meet with activists
at 5 P.M. in advance of the 6 P.M. announcement. At about 5:30, the
crowd was informed that the president had delayed any police action
while a meeting with protest leaders, clergy, and faculty members was in
session. At 7:15 the meeting disbanded, and at 7:30 Savio climbed atop
the stranded police car and read the agreement:
1. The student demonstrators shall desist from all forms of their il-
legal protest against University regulations.
2. A committee representing students (including leaders of the
demonstration), faculty, and administration will immediately be
set up to conduct discussions and hearings into all aspects of
political behavior on campus and its control, and to make rec-
ommendations to the administration.
3. The arrested man will be booked, released on his own recogni-
zance, and the university (complainant) will not press charges.
4. The duration of the suspension of the suspended students will
be submitted within one week to the Student Conduct Commit-
tee of the Academic Senate.
5. Activity may be continued by student organizations in accor-
dance with existing University regulations.
6. The President of the university has already declared his willing-
ness to support deeding certain University property at the end of
Telegraph Avenue to the city of Berkeley or to the ASUC.
Savio urged the protesters to end their occupation of the plaza and to go
home “with dignity.” The protesters assented and the demonstration
broke up.
Meanwhile, President Kerr held a press conference confirming

the details of the agreement and announcing that Chancellor Strong
would set up the ad hoc committee mentioned. He also noted, how-
ever, that the UC administration would not be bound by the recom-
mendations of the ad hoc committee: they were to be recommenda-
tions only. Finally, he stated that while the university would not press
charges, he could not speak for the district attorney, who might (and
in fact did).
Over the next several days both the administration and the protest-
ers skirmished—verbally, at least—over the meaning of the October 2
agreement, with students holding a large, and illegal, rally at Sproul
Plaza on October 5. The activists agreed at the rally to suspend political
activity in the contested spaces until after the ad hoc committee met
and formulated its policy recommendations. When Chancellor Strong
soon afterward announced the members of the ad hoc committee,
elected FSM leaders immediately protested, saying they had not been
consulted in the manner that they felt the October 2 agreement required
them to be. When the committee met for the first time on October 7,
ten FSM leaders appeared before it, declared it to have been illegally
constituted, asked it to disband, and walked out. For its part, the com-
mittee announced itself to be a “study” rather than a “policy” commit-
tee and, after much discussion, determined to hold hearings on campus
political activity beginning in 1 week.
Simultaneously, Clark Kerr went on a public relations offensive, de-
claring that though students were more activist than ever, the Berkeley
protest was “one episode—a single campus, a small minority of stu-
dents, a short period of time”—that is, an aberration. He more than
once went out of his way to note that some of the demonstrators had
“communist sympathies.” He also reiterated that the administration was
acting within the spirit of both the October 2 declaration and the nego-
tiations that led to it, a position that received some support from faculty
members who had brokered much of the agreement. Chancellor Strong
also went on record, declaring the protests to be the result of “hard-core
protesters” who wanted to “open up the university,” and that his admin-
istration was determined to make sure that “the university will not be
used as a bastion for the planning and implementation of political and
social action.” Despite and because of these pronouncements, Kerr,
Strong, and both the UC and Berkeley administrations found them-
selves buffeted by continual and often competing representations, peti-
tions, complaints, and threatened protests—from various student groups
such as fraternities, sororities, and even 29 Oski Dolls (UC Berkeley

cheerleaders), as well as from ad hoc faculty groups, state politicians,
and newspaper editorialists.
When the Study Committee on Political Activity (as the ad hoc
committee was renamed) held its first public hearing on October 13, all
but one of the 300 speakers rose to declare the committee to be illegally
constituted. Partially in response, a new agreement was forged between
the FSM steering committee, the administration and other interested
parties. Announced on October 15, the agreement reestablished the
Study Committee on Political Activity along new lines: it was enlarged
from 12 to 18 members; exact means by which members were to be ap-
pointed were specified; provisions were made for twice-weekly hearings
to last for 3 weeks; two attorneys and five other “silent observers” were
invited to join the hearings; and it was determined that all decisions
were to be made by consensus.
As both the Committee on Political Activities hearings and separate
hearings into the suspension of the eight originally cited students got
under way, FSM leaders debated the efficacy of continuing a ban on po-
litical tables on campus and decided, despite the impending national
election, to maintain the ban while the committees did their work. After
the election, on November 9, however, feeling that the process was
moving too slowly, and in response to administration arguments that it
needed to retain the right to discipline students or organizations that
advocated acts that “directly result[ed]” in “unlawful acts” off campus,
FSM-affiliated groups returned to “tabling” on Sproul Plaza and at
Bancroft–Telegraph. The FSM argued that the determination of whether
activities were illegal was up to the courts to decide, not the university
administration, and that it needed to “exercise its constitutional rights.”
The time to test the administration’s position on the use of the campus
for speech had come.
The following day, some 70 students received letters citing them
for violating (still in effect) university policies. Once again, hundreds
of students (many of them graduate students, who by this time had
also begun to explore the possibility of unionizing) signed petitions
claiming equal responsibility for breaking university regulations. De-
spite the citations, the university took no action against the people
staffing the tables and allowed them to continue their advocacy work.
On November 20, as the University Regents were meeting in Univer-
sity Hall, some three thousand students rallied at Sproul Hall before
working their way to the Regents’ meeting. At the meeting, FSM and
other student representatives were barred from speaking. The Regents
eventually voted, on President Kerr’s recommendation, to adopt a modi-
fied version of regulations developed by the Committee on Political Ac-
tion to allow fund-raising and recruitment, but banning “illegal advo-
cacy.” At the same time, the Regents more or less rejected a faculty
committee recommendation that the originally cited students only be
“censured” and instead reinstated them without clearing their records.
In response, graduate students called for a sit-in, but Savio argued,
successfully, for a cooling-off period over the weekend, followed by a
rally on Monday, November 23.
On that day, several hundred students reoccupied Sproul Hall, but
only after a fierce debate within the FSM (that by many accounts “split”
the movement). After the Thanksgiving weekend, and as many FSM ac-
tivists reestablished tables on the plaza and Bancroft–Telegraph, gradu-
ate students voted to strike, beginning on December 4. In the mean-
time, three FSM leaders, Savio, Arthur Goldberg, and Jackie Goldberg,
received letters saying that new disciplinary charges stemming from the
October 1–2 protests were being lodged against them by the administra-
tion. On December 2, 800 students once again occupied Sproul Hall to
protest the administration’s “arbitrarily singling out students for pun-
ishment” and what they saw as a continuing refusal to negotiate in good
faith.
Governor Brown responded on December 3 by sending more than
600 police officers to Sproul Hall to arrest the demonstrators. Arrests
lasted more than 12 hours. Sympathetic students and faculty staged a
spontaneous strike. Taking their strongest stand yet, some 900 faculty
members met that night and called for complete amnesty for the FSM
protesters and for complete and unconditional political freedom for stu-
dents—including the right to engage in advocacy. Departmental chairs
working behind the scenes tried to meet with the administration to ne-
gotiate a settlement but were rebuffed. The next day, as the strike con-
tinued—quite effectively—and as the administration maintained an ee-
rie silence, refusing to talk with faculty or departmental chairs, the
chairs of all campus departments constituted themselves as the Council
of Chairmen in hopes of reestablishing at least some authority on cam-
pus (since the general sense was that both the campus and system ad-
ministrations had pretty much abdicated).
Frenetic rounds of negotiation followed, as nearly all normal cam-
pus activity ground to a halt. Over the weekend of December 5 and 6,

the Council of Chairmen met in long sessions to work out a plan to end
the protests, and after a meeting between the head of the Council of
Chairmen and President Kerr, and later between Kerr and the Regents
in a South San Francisco motel, an agreement was reached. Classes were
cancelled campus-wide on Monday morning, December 7, so that de-
partmental meetings could be held to discuss the agreement. In brief,
the agreement represented a significant victory for the FSM: complete
amnesty was granted to protesters for actions through December 7, and
no position by the administration was to be taken on the question of ad-
vocacy. Following the departmental meetings, a huge convocation was
held in the Greek Theater to announce the terms of the agreement (Fig-
ure 3.7). At the conclusion, Mario Savio attempted to speak to the as-
sembled students and staff but was pulled from the stage by police offi-
cers. When he was finally allowed to speak, he announced a rally for
noon at Sproul Hall.
At the noon rally, department chairs and FSM leaders announced
the end of the strike while the Academic Senate considered the proposal
for complete political freedom and the right to advocacy. Rumors
quickly spread that in closed-door meetings President Kerr had agreed
to the opening up of the campus for political activity. The following day,
the Academic Senate voted 824–115 to accept a resolution allowing po-
litical speech and advocacy on campus and lifting restrictions on stu-
dents’ off-campus political activities as well as political activities by
nonstudents on campus. The Senate resolution noted, however, that the
Senate, as the lawmaking body on campus, needed to regulate the
“time, place, and manner” of speech activities on campus, in essence re-
turning the university to the status quo ante of 1938 before “Rule 17”
had been implemented—and aligning the campus with other publicly
owned spaces in the city. The Free Speech Movement—at least in its di-
rectly activist form—was over. A significant victory in favor of students’
rights of assembly and speech—and of control over their campus—was
won.
The Geography of Free Speech 3: The Where of Protest

A fight over location, coupled with a fight over “appropriate” forms of
speech and political action, proved to be explosive not just for the cam-
pus but for Berkeley and beyond. When Berkeley students and activists
FIGURE 3.7. Clark Kerr addresses the meeting at the Greek Theater on December
7, 1964 (top). The meeting was called to announce the terms of the agreement end-
ing the Free Speech protests. When Mario Savio sought to address the crowd at the
end of the meeting, he was pulled from the stage by policemen (bottom). Photo-
graph originally published in Heirich (1971).
won the right to set up tables and promote political action on the Tele-
graph–Bancroft sidewalk and in Sproul Plaza, they in essence won the
right to a particular space—the campus. From that space, many sought
to organize a new kind of society, a new kind of city. But make no mis-
take, control of a public space was crucial, since, after all, it was only
through control over that space that political action could expand. The
Berkeley campus became what Bruce D’Arcus (2001) calls a “protest

platform”—something akin to a “liberated zone” from within which po-
litical action could be organized.
This was an issue clearly grasped by both FSM activists and the UC
administration. As Clark Kerr had already said, it seemed as if many of
the students hoped to turn the campus “on the Latin American or Japa-
nese” model into a staging ground for radical societal transformation.
As we will shortly see, they were, in fact, to some extent successful. But
first it is important to emphasize just how much this was a locational
conflict. The Free Speech Movement began as a response to the univer-
sity’s attempts to control or direct the speech activities of its students
(and others who used the campus). The argument was that the institu-
tion of the university controlled and had full rights over the space of the
university, that the campus was simply not a public forum in the tradi-
tional sense. In terms of the public forum doctrine that was even then
emerging at the level of the Supreme Court, the university argued, at
least implicitly, that the campus was at best a “dedicated” public forum
and thus it had a right to more closely regulate the types of speech activ-
ities engaged in, their specific locations, the times they could occur, and
so forth. The campus simply was not a city street or park and was not to
be treated like one. By contrast, activists argued, again implicitly, that
the campus was in fact a traditional public forum (or should have been
one) and that the university had no right to regulate speech beyond the
regulations already provided for in law. For these activists, there was no
clear distinction between a city-owned sidewalk and a university-owned
one, except insofar as the university-owned one was a better location
for their activities. Activists worked to assert their right to the particular
space of the campus (as opposed to simply moving their activities onto
city-owned property).
At a finer spatial scale, the Free Speech Movement was even more a
conflict over location. The university’s establishment, and the activist’s
rejection, of a “Hyde Park” area in the lower Sproul Plaza indicates just
how much the Free Speech Movement was concerned with the question
of where protest or other political activity should be located. For the
students, to “go again to Hyde Park” meant something entirely different
than it did for the administration. For the administration, it meant that
certain “Hyde Parks” convenient to it could be established. For activists
it meant retaking the prime protest and political locations of the univer-
sity and city. It meant reclaiming the sidewalk at Telegraph and
Bancroft. It meant establishing a right to the plaza at the foot of Sproul

Hall (and just outside Sather Gate)—the traditional heart of the cam-
pus. Indeed, it meant reclaiming the steps of Sproul Hall themselves. It
meant taking a space and making it public (a point to which I will return
in greater detail in the next chapter).
To this day, Sproul Plaza remains a prime political space on the
Berkeley campus. Nearly every lunchtime, activists set up on the Sproul
steps and address the passing crowds. Along the walk to the Sather
Gate, numerous organizations—both “on” and “off” campus ones—set
up tables and distribute literature. On important occasions, marches
and rallies are organized or held in Sproul Plaza. It remains a vibrant
space for politics.
FROM FREE SPEECH TO COUNTERCULTURE:

URBAN RENEWAL AND THE BATTLE
FOR PEOPLE’S PARK
Following the victories of the Free Speech Movement, the transforma-

tion of the neighborhoods around the Berkeley campus intensified. The
movement proved to be a great reinforcer of the bourgeoning counter-
culture of the South Campus area (Scheer 1969). And, just as President
Kerr had feared, the campus itself became something of a “free zone”
for political activists. The Vietnam Day Committee, among others, was
accused by relatively conservative faculty and others of using the uni-
versity as a “staging ground” for subversive forays into the larger com-
munity. The otherwise liberal philosopher and sociologist Lewis Feuer,
in particular, was deeply outraged by the Free Speech Movement and its
effects on the Berkeley campus. Feuer blamed the faculty for refusing to
“properly” limit the rights of students. This refusal had allowed the
campus to “safeguard the advocacy and planning of immediate acts of
violence, illegal demonstrations, interferences with troop trains, and ob-
scene speech and action” (Feuer 1966, 78). The value—to activists—of a
“liberated” staging ground—a public space—could not be clearer. The
value—to liberalism—of order in public spaces also could not be more
clear.
Perhaps that is the reason that the university, too, wanted to use the
campus as a staging ground for an assault on the urban fabric of the
South Campus area, even as city plans for urban renewal were coming
under increasing fire by merchants and residents of the area. In the

spring of 1966, public hearings, required by federal law, were held on
the city’s Long-Range Development Plan, which called for extensive ur-
ban renewal and redevelopment in South Campus and along Telegraph
Avenue. Opposition to the plan was strong enough that the Berkeley
Gazette, a supporter of city-wide redevelopment, had to admit that the
residents of the South Campus area “do not now, and have not in the
past, liked the plan.” But support from outside the district was strong
from those who were “aghast” (as the Gazette put it) at the “beatnik”
development that appeared to be arising in the absence of a strong city
program of redevelopment. During a series of delays in implementing
the plan, an uneasy alliance of students, local merchants worried about
increasing rents, and older people “living in lifetime homes” in the
South Campus area organized effectively enough to defeat the redevel-
opment plans (Scheer 1969, 44).
Despite the demise of the Long-Range Redevelopment Plan and the
end of comprehensive urban redevelopment in Berkeley, the university
maintained an aggressive desire to expand into the South Campus area.
In particular it eyed a series of lots, mostly occupied by relatively run-
down older houses, for dormitories and other “nonacademic uses” over
which the university would nonetheless have control. As part of this ex-
pansion plan, the university in 1967 authorized its new chancellor,
Roger Heyns, and Vice Chancellor Earl Cheit to purchase lot 1875-2 be-
tween Dwight and Haste Streets (see Figure 4.2, page 121). Original
university plans had called for the construction of high-rise dormitories
on this site, but because vacancy rates were at an all-time high in the
city, dormitories were not really feasible. The university thus an-
nounced that the purchase of the site, and the clearing away of the
houses on it, was designed to address a “desperate need” for a new soc-
cer field in the area. When pressed by a reporter, the chairman of the
campus Building and Development Committee admitted that one of the
effects of the purchase would be to transform the South Campus neigh-
borhood—to assist in eliminating the “counter culture” that had begun
to grow up around, and define, the university: “I presume it is true. You
are killing two birds with one stone. But we are aiming at only one of
them; the other is free. We are seeking more facilities and if you engage
in urban renewal, that’s an added benefit” (Scheer 1969, 44).14 Univer-
sity Regent Fred Dutton remarked after the decision to buy the property
had been made that Heyns and Cheit had presented their plan for the
lot to the Board of Regents as “an act against the hippie culture” (Scheer
1969, 44).
In 1967 the campus administration bought the land—through the
imposition of eminent domain—despite the fact that no funds were ap-
propriated to improve it once purchased. The resolution that justified
the purchase left no room for disagreement over the reason the pur-
chase had been approved: “The Regents have approved the use of $1.3
million in U.C. funds to purchase three acres south of the Berkeley cam-
pus. The area has been a scene of hippie concentration and rising
crime.” In June 1967, still without money for improvement, the houses
on the three acres that comprised lot 1875-2 were demolished (Scheer
1969, 46).
All through 1968 and into 1969, lot 1875-2 remained unimproved—
a muddy patch of ground that had become a free parking lot and, to many
in South Campus, a symbol of the contempt in which the university held
them. Indeed, it sat like a hole right in the heart of what was fast becoming
the center of political and cultural transformation in Berkeley. While
Sproul Plaza still remained a vital center for organizing, Telegraph Avenue
had increased in importance as a site for experimentation, political meet-
ings, neighborhood solidarity, and anti-war activism. During the summer
of 1968, Telegraph Avenue was the scene of a series of pitched battles be-
tween riot police and antiwar demonstrators. And on campus, during the
winter term of 1969, a wide coalition of students called for a strike (not
the first since the FSM, either) to win their demands for a range of ethnic
studies programs. The strike met with a good deal of success. Fearing an
escalation of the occasional violence that had marked recent demonstra-
tions, Chancellor Heyns turned over command of the campus police to
(the notoriously tough) Alameda County Sheriff Frank Madigan, and
requested that the new governor, Ronald Reagan, declare a state of emer-
gency. Reagan readily agreed and, as the so-called Third World Strike
quickly withered in the face of severe police brutality (Lyford 1982, 38),
police forces were gradually withdrawn. The state of emergency, however,
still remained technically in effect.
In this context, the following announcement appeared in the
Berkeley Barb in April 17, 1969:
A park will be built this Sunday between Dwight and Haste.

The Land is owned by the university which tore down a lot of beautiful
houses in order to build a swamp.
The land is now used as a free parking space. In a year the university will
build a cement-type expansive parking lot which will compete with
the other lots for the allegiance of the Berkeley Buicks.
On Sunday we will stop this shit. Bring shovels, hoses, chains, grass,
paints, flowers, trees, bull dozers, top soil, colorful smiles, and lots
of weed. . . .
We want the park to be a cultural, political freak-out rap center for the
Western World. . . .
This summer we will not be fucked over by the pigs “move on” fascism,
we will police our own park and not allow its occupation by an im-
perial power. . . . (reprinted in Lyford 1982, 40–41)
Activists, in other words, were planning to take (or perhaps take back)
another space in the name of creating an open community-controlled
political space. They were planning to make a People’s Park (Figure
3.8).
Although the reasons for being involved in the park were as varied
as the people who turned out on that first Sunday morning, April 20,
1969, there still was the understanding that the construction of the park
was a symbolic act that struck at both the designs of the university as a
capitalist enterprise (in the terms long before articulated by Clark Kerr)
and at capitalist society itself.15 As one of the park supporters recalled a
few years later: “The builders of the park were not a gang of ideological
do-gooders. . . . Although economic and environmental issues were
raised by park developers and supporters, fundamental to the struggle
was the right of ownership, and the nature of private property rights”
(quoted in Lyford, 1982, 41). Robert Scheer (1969, 46) suggested that
most of the builders were of the “nonsectarian breed that managed to
get through Berkeley’s ideological warfare with a sense of humor and
spontaneity in tactics.” Soon People’s Park became an “event.” On
weekends as many as 3,000 people worked at planting flowers and
building playgrounds (Figure 3.9). The development of the park had
broad-based support on campus and within the community. A letter to
the Daily Californian protesting the university’s decision to reclaim the
land the park was built on was signed by 84 students leaders, including
not only activists but also fraternity presidents, the head of the pom-
pom girls, and the leader (again) of the Oskie Dolls.
Despite such support for People’s Park, Chancellor Heyns decided
that the university could not simply ignore such a strong challenge to
its authority—and its ownership of lot 1875-2. On May 14, 1969, before
FIGURE 3.8. The muddy parking lot (lot 1875-2) that eventually became People’s
Park. Photograph by Mark Harris.
leaving town on business, Chancellor Heyns privately ordered the park

to be cleared of any “residents” and a fence to be built around the per-
imeter. Heyns arranged for the Alameda County Sheriff to provide pro-
tection for the work crews that would remove people from the land and
build the fence. Since Vice Chancellor Cheit was also out of town, a sec-
ond vice chancellor was left in charge of the operations, although he
later claimed that he had not been told the fence was to be constructed.
He claimed that he “was told not to expect any problems” (quoted in
Scheer 1969, 52).
At first it looked as though there just might not be any problems.
The fence was constructed at 5:30 A.M. without any disturbance. The ra-
tionale for this action was presented by Chancellor Heyns a day later:
We have been presented with a park we hadn’t even planned or asked

for. . . . So what happens next? First we will have to put up a fence to rees-
tablish the conveniently forgotten fact that the field is indeed the univer-
sity’s, and to exclude unauthorized persons from the site. That’s a hard
way to make a point, but that’s the way it has to be. (quoted in Lyford
16
1982, 43)
The first protest against the fence was called for noon on May 15—to be
held in the long-since-liberated Sproul Plaza. About 6,000 protesters
massed and, urged on by just-elected student body president Dan Siegal
to “reclaim the park,” began to march down Telegraph Avenue.
There they met the arrayed forces of the Berkeley city police and
the Alameda County sheriffs, who attempted to disperse the crowd.
Under a giant billboard proclaiming “Showtime” (Figure 3.10), the riot-
ing that ensued was vicious and bloody. At least 128 protesters were in-
jured, one was blinded after being shot in the eyes with buckshot, and
one other—James Rector—was fatally wounded as he watched the riot
from a roof above Telegraph Avenue. No police officers were seriously
injured. Alameda Sheriff Frank Madigan, whose officers were responsi-
ble for most of the injuries and Rector’s death, defended the use of force
by claiming that the crisis had been instigated by “anarchists and revo-
FIGURE 3.9. Building the Park. Hundreds of people turned out on successive
weekends to construct People’s Park. People brought tools, donated materials, or
simply provided labor, as their means permitted. Photograph by Jean Raisler.
lutionaries” intent on taking “this form of government down, starting

with the educational system and then with law enforcement” (quoted in
Lyford 1982, 53). That night, referring to the continuing state of emer-
gency, Governor Reagan remobilized the National Guard and banned
public assemblies.
Despite the ban, protesters—students, city residents, sympathetic
faculty members—gathered daily on and off campus to protest both the
fencing of the park and the ongoing use of force by the police and Na-
tional Guard, including the famous tear gas “bombing” of the campus
by National Guard helicopters (Figure 3.11). Following a show of over-
whelming support for the park in a campus-wide referendum, Chancel-
lor Heyns announced on May 29 that he supported leasing the land to
the city of Berkeley. The next day some 30,000 people march peacefully
past the park as violence subsided. The fence, however, did not come
down. Indeed, it remained under 24-hour guard.
After the Riots

On June 20, 1969, Governor Reagan pushed a proposal through the
Board of Regents that called for the construction of student housing on
the site of People’s Park, a return to the original Long-Range Plan of
FIGURE 3.10. Showtime. The People’s Park riots. May 1969. Photograph by Ed
Krishner.
1952. In doing so, Reagan engineered the rejection of a compromise

plan, supported by the chancellor, that would have leased the land to
the city of Berkeley for 7 years with provisions for the maintenance of a
user-constructed park on at least a portion of the parcel (Scheer 1969,
53). Whereas the builders of the park and its defenders saw the park as
an unalienated space for social, cultural, and political action, Reagan,
echoing Matthew Arnold from so many years ago, saw things rather dif-
ferently: the disturbances in Berkeley (and, in sympathy, throughout the
university system) were not “simply the acts of youngsters sowing their
wild oats or legitimately questioning our society and its values” (quoted
FIGURE 3.11. The famous teargassing of the Berkeley campus during the People’s
Park riots. The student center is in the foreground. Most of the teargas drifted north
of Sather Gate into the main part of campus and beyond into the wealthy residential
neighborhoods to the north. Photograph by Andrew R. Scott.
in Los Angeles Times, 1969). While more than a panty raid, the pro-
tests—including the taking of the land in the first place—were less than
legitimate. Presumably, building another dorm would help reassert con-
trol over the students and other rioters.
For park builders and protesters, of course, this had never been a
“panty raid.” It was, in fact, a much more fundamental fight. Lot 1875-2
became a symbol of the arrogance and the power of the university
(which itself stood as a symbol of “the system,” or “the establishment”).
Throughout the 1950s and 1960s, the university had claimed for itself,
and attempted to enforce, the right to determine the nature and form of
political discourse. Against this, students and others were struggling to
find new and (in their eyes) appropriate forms of expression. Doing so
required the taking, occupation, and radical transformation of space: it
necessarily led to conflicts over location (where political speech could
occur; where dorms should be built) which were at the same time strug-
gles over rights (who had the right to speak; who had the right to deter-
mine the fortunes of whole neighborhoods). Making People’s Park and
subsequently defending it, like the Free Speech Movement that pre-
ceded it, were experiments, certainly imperfect, in the radical democra-
tization of decision making, and of the adjudication of conflicting
rights—including, quite apparently, the right to the campus and to the
city—in Berkeley.
In the end, Governor Reagan denounced the protesters as “street
gangs,” asserting that they were a “well-prepared and well-armed mass
of people who had stockpiled all kinds of weapons and missiles”
(quoted in Los Angeles Times, 1969). And despite a second riot in 1971,
the fence remained around the park until May 1972, when protesters
ripped it down in reaction to President Richard Nixon’s announcement
that the United States was planning to mine harbors in North Vietnam.
But if the disposition of lot 1875-2 remained unsettled, it nonethe-
less served as a rallying point for the transformation of politics in Berke-
ley. A coalition of radical groups began to organize around a series of
electoral issues, and People’s Park became a symbolic center: what had
been a battle over a specific space widened into a conflict over the con-
struction of a new political hegemony in the city. Berkeley radicals,
many of them veterans of the FSM and Peoples Park, ran their first slate
of candidates for city council in 1969, losing to more traditional liberal
Democrats who had earlier ousted the conservative establishment that
had run the city for the bulk of the 20th century. The radical coalition
had much better success in 1973 (and by 1979 had elected one of their
own as mayor), and it remained the guiding force in city politics
through the 1980s. In combination with liberals, Berkeley radicals
reframed Berkeley as a leading center of experimentation for populist-
radical politics, including rent control, ecological initiatives, and, until
an almost reactionary set of policies was enacted in the 1990s, compas-
sionate care for the homeless and street people (Lyford 1982). Perhaps
most importantly, radicals centered on campus and in the South Cam-
pus area early aligned themselves with black activists in South and West
Berkeley, allowing the activism of the campus to merge (not always eas-
ily) with militant black activism in Berkeley and Oakland.
Following the 1969 riots, the university, unable to build dormito-
ries, built a soccer field on a portion of the lot. Students and community
members staged a successful boycott of the field, and the university
abandoned it a few years later. For a time during the 1970s, a portion of
the park reverted back to a free parking lot, but when the university
proposed charging fees, the community responded with jackhammers
and destroyed the lot in front of onlooking and passive police. In 1976
the university held hearings on developing married student housing on
the site. Faced with overwhelming opposition, the university eventually
withdrew the plan.
During all these battles of the 1970s and into the 1980s, the park
became a growing refuge, not only for political action but also for
(mostly male) homeless people. Indeed, the growth of the homeless or
transient population, coupled with the vehemence with which park de-
fenders opposed development on the site, led many to see People’s Park
as a place “off-limits” to students and police alike. As nearby Telegraph
Avenue gentrified during the 1980s, many merchants, students, and vis-
itors began to see the park as a zone of danger and trouble rather than a
symbol of radical populist politics—or in some forms as a zone of trou-
ble precisely because it was a symbol, and the result, of populist-radical
politics (Lyford 1982). For many, a direct line could be drawn from the
FSM, through the People’s Park riots, and to the state of People’s Park in
the late 1980s when it was often perceived as an uncontrolled and dan-
gerous sore spot in the side of Berkeley and the university. By 1991
things came to a head once again as rioting broke out on the 20th anni-
versary of the original riots. But that is a story for the next chapter, a
chapter which will use the more recent history of People’s Park to ex-
plore both the legacy and the meaning of the Free Speech Movement
and the creation of the park for any putative right to the city. For rights
are exactly what are at stake.
NOTES
1. Locational conflict is usually studied in terms of the siting of specific, often

noxious, facilities. The literature is large. A useful review and summary can
be found in Takahashi (1998). Much of this literature is concerned with
questions of NIMBYism (the “not in my backyard” syndrome, which takes
a critical attitude toward often parochial concerns of middle- and upper-
middle-class homeowners. However, the locational conflict literature—and
activists who struggle for or against the siting of specific facilities—some-
times also intersects with concerns over, and literature on, environmental
racism, since it is often the case that noxious and dangerous facilities are
“dumped” in poor nonwhite neighborhoods. There is a relationship, that
is, between NIMBYism and environmental racism, and the politics of this
relationship is both fascinating and critically important. See Pulido (2000).
In this chapter I will be turning the argument in a different direction, how-
ever, by exploring struggles for free speech, a place for the homeless to
hang out, and similar issues as spatial struggles over rights.
2. The issue of campus speech areas arose again in the spring of 2002 with a
spate of articles and news reports about various student attempts (notably
at West Virginia University) to eliminate free speech zoning on their cam-
pus.
3. Indeed, one of the interesting but so far unremarked aspects of the recent
attempt to zone speech is that it is conservative organizations (such as the
Foundation for Individual Rights in Education) that are agitating against
them, whereas in the 1960s similar institutions were strongly in favor of
zoning—if not eliminating—the speech rights of students. Opposition to
free speech zones is thus sometimes couched as an assault on free speech in
exactly the same manner that Supreme Court Justice Antonin Scalia sees
bubble zones around abortion clinics (and patients) as an assault on free
speech.
4. Kerr is a fascinating figure. A labor economist by training (and one with
great sympathy for the radical organizers of the 1930s), Kerr was the
protégé of the important Berkeley sociologist Paul Taylor before becoming
president of the largest university system in the country. After being fired
as president, Kerr has remained in demand as a theorist of higher educa-
tion in the modern world.
5. Kerr’s Uses of the University can be productively read against Bill Readings’s
(1996) more recent, and critical, University in Ruins. It is striking just how
much of Kerr’s vision for the putatively nonideological “multiversity” has
come to pass, and just what the costs, in terms of free, noncommodified in-
quiry has been.
6. This is an exceedingly interesting and in some senses prescient passage in

Kerr et al. (1960). The authors go on to predict exactly the zeitgeist of the
1990s that so celebrated business and advertising triumphalism as a form
of rebellion: “Along with the bureaucratic conservativism of economic and
political life may well go a New Bohemianism in the other aspects of life
and partly as a reaction to the confining nature of the productive side of so-
ciety. There may well come a new search for individuality and a new mean-
ing to liberty. The economic system may be highly ordered and the political
system barren ideologically; but the social and recreational and cultural as-
pects of life diverse and changing” (295). For an analysis of the 1990s zeit-
geist, see Frank (2001).
7. Two standard histories cover the rise of the national student left in the
1950s and 1960s: Miller (1994) and Gitlin (1993).
8. A study conducted by the UC Berkeley student government (ASUC)
showed that, of 20 schools with enrollments exceeding 8,000, only the
University of Arizona had similarly restrictive regulations concerning the
location and content of speech on and off campus by students. While three
schools reported no political action among students, 16 reported that there
were no substantive hindrances to the exercise of political rights. See
Heirich and Kaplan (1965, 30). One of the depressing things about work-
ing at a university at the dawn of the 21st century is just how strongly the
ideology of in loco parentis has been revived by campus administrations—
often at the urging of students’ parents, parents who themselves fought so
hard to dismantle it or were prime beneficiaries of its demise in the first
place!
9. The United States House Un-American Activities Committee held a series
of hearings in San Francisco during 1960. These hearings were well pro-
tested by Berkeley students. On the second day of the hearings, after stu-
dents had been refused entrance to the hearings chamber, San Francisco
police “washed” hundreds of demonstrators down the steps of the San
Francisco City Hall. Many of those hosed and many of those arrested in the
ensuing roundup were students who had participated in civil rights
marches in the South. The congruence of experience was not lost on many.
The California legislature had its own Un-American Activities Committee
that had been active in witch-hunts throughout the 1950s and that was
keeping a close eye on the growing unrest on the Berkeley campus. For a
history of these activities and the students’ role in them, see Heirich and
Kaplan (1965) and Draper (1966).
10. Rule 17 had been implemented in response to complaints from farmers’
and business groups around the state about support for radical union
causes emanating from the Berkeley campus. Keep in mind that the presi-
dent oversees the whole UC system. A chancellor runs each campus. Thus,
speakers and other political activities on specific campuses had to be ap-
proved at the system level.
11. Lipset’s analysis is remarkably similar to that of an earlier UC professor,
Carleton Parker, who, as head of the California Commission of Immigra-
tion and Housing in 1914, dismissed the radical action of the Industrial
Workers of the World as an infantile, sexually deviant, psychosis. See
Parker (1919) and Mitchell (1996a).
12. There are several chronologies of the FSM, most of which are now avail-
able at the impressive Free Speech Movement Archive: http://www.fsm-
a.org/. These chronologies are often slightly inconsistent with one another.
The following is pieced together from these accounts and from published
chronologies and analyses such as Draper (1966); Editors of the California
Monthly (1965); Lipset and Wolin (1965). I make no attempt to resolve mi-
nor discrepancies definitively, but rather have deferred to the general sense
of when something actually happened. The letter from the dean of students
was dated September 14, 1964, but was not received by student groups un-
til September 16.
13. All direct quotations in this section are taken from http://www.fsm-a.org/
stacks/chron_ca_monthly.html#September%2010, which is an online version
of Editors of the California Monthly (1965). As is often the case in ques-
tions of free speech, the line between “pure speech” and advocacy or in-
citement is a very thin one. As Dean Towle explained at one point during
the controversy (October 28): “A speaker may say, for instance, that there
is going to be a picket line at such-and-such a place, and it is a worthy
cause and he hopes people will go. But, he cannot say, ‘I’ll meet you there
and we’ll picket.’ ”
14. Sack (1986) has argued that “emptiable space” is crucial to the develop-
ment of the modern city. By emptying space of conflicting and uncon-
trolled uses, control over the lives and activities of its (future) users can be
asserted by its owners or other powerful institutions. See also Sibley
(1995) and Cresswell (1996).
15. As Annette Kolodny (1975, 4) notes, the creation of People’s Park also
symbolized “another version of what is probably America’s oldest and most
cherished fantasy: a daily reality of harmony between man and nature
based on an experience of the land as essentially female.” This is impor-
tant, but I do not deal with these issues directly in this volume. Rather, I
focus on how the park operated—and operates—as a political space, as a
symbol of a “liberated” space in the heart of a capitalist city. That said, the
issues of gender that Kolodny raises are crucial to this “political opera-
tion,” as we will see in the next chapter.
16. Of course, one of the park builders’ main claims was that the land was not
at all the university’s. Park builders sought to drive home the point, among
other ways, by tracing and publicizing Native American claims to the land,
using Indian imagery on posters and leaflets.
4
The End of Public Space?

People’s Park, the Public, and the Right
to the City
STRUGGLING OVER PUBLIC SPACE:

THE VOLLEYBALL RIOTS
In April 1989 the chancellor of the University of California, sensing a

changing political climate reflected in the moderating radicalism of the
Berkeley city council and the general complacency of Reagan–Bush era
students, raised once again the idea of building dormitories on People’s
Park. His timing was not good. Park supporters were in the midst of
planning a 20th anniversary memorial of the 1969 riots and a celebra-
tion of the park, and the chancellor’s proposal contributed to a growing
sense that the demise of the park was imminent. Gentrification along
Telegraph Avenue, further university development in the South Campus
neighborhood, and almost nonstop debates over how best to “develop”
the People’s Park site all seemed to indicate that the survival of the park
as a user-developed and -controlled site was in jeopardy. The cumulat-
ing unease and frustration erupted into a full-scale, if rather nostalgia-
tinged, riot on May 20, 1989, the 20th anniversary of the original Peo-
ple’s Park riots (Los Angeles Times 1989a; New York Times 1989).
Central to the 1989 riot was the question of homelessness: what
right did homeless people have to the city? And in the city, what right
did they have to the park? The growing homeless population in the
park, and on the streets of Berkeley more generally, raised critical ques-
118
tions in this supposedly liberated and liberal city—questions about

housing policy and gentrification, questions about appropriate street
behavior, and questions about just whose city Berkeley was—in ways
that they never really were raised in the 1960s. During the 1980s a
number of Telegraph Avenue merchants, in particular, were growing in-
creasingly vocal in their demands that “something be done” about the
homeless. People’s Park as a central gathering and living space for the
homeless was seen by a growing number of residents, students, and
merchants as not so much the solution to alienated living in the city but
rather its cause—only now it was the middle class that was being alien-
ated.
Even so, the university found it hard to do much of anything about
People’s Park. It had become a—if not the—primary symbol of the radi-
cal uprisings of the 1960s, and (often self-proclaimed) defenders of the
park were zealous in their determination that no new structures be built
there and that some of the traditional structures—such as the stage and
the “free box” (Figure 4.1)—be preserved at all costs.1 The politics of
the park’s evolution was often quite complex, with alliances frequently
shifting. Despite their general antipathy for the stance of those mer-
chants who wanted to rid the area of the homeless, many park defend-
ers opposed a 1986 Catholic Worker plan to set up a “People’s Café”—a
trailer and deck that served as a soup kitchen for Berkeley homeless
FIGURE 4.1. The large central grassy area of People’s Park, circa 1990. The Free
Stage is behind the cluster of people to the left; the Free Box is below the bulletin
board to the right. Photograph by author.
people—in the park. The university found itself aligned with these de-
fenders when it sued to block construction of the People’s Café, a suit
that a Berkeley judge refused to hear, lecturing the university “about
wishy-washy liberalism that refuses to take responsibility for the com-
munity’s problems” (Horn 1989).
Despite its April announcement, by the fall of 1989, the University
of California had resigned itself to maintaining the park as an open
space, but it had not yet given up hope of controlling the space and de-
veloping the park in its own interest. On November 2 of that year, the
chancellor announced that the university would lease a portion of the
land to the city of Berkeley for a trial basis. The city determined that its
portions of the park would be dedicated to user-control; but it also be-
gan exploring ways to remove the homeless people who camped there.
To aid in this effort, the chancellor pledged $1 million a year for 10
years to the city to help defray the costs of aid to the homeless and other
services (Rabinowitz 1989).
The details of the November 1989 accord took more than another
year to be ironed out. During its negotiations with the city, the univer-
sity emphasized that it had every intention of retaining lot 1875-2 as a
park but that it wanted it to be a park in which inappropriate persons—
“the criminal element,” as the university put it (Boudreau 1991, A3)—
were removed to make room for students and middle-class residents
who, the university argued, had been excluded as People’s Park became
a haven for “small-time drug dealers, street people, and the homeless.”
The park development plan that the city and university eventually
settled on seemed innocuous enough (Figure 4.2): the university would
lease the west and east ends of the park (for $1 a year) to the city for
“community use.” The central portion of the park, the big grassy field
where many homeless slept and which was the traditional gathering
place for rallies, speeches, and concerts, was to be converted by the uni-
versity into a recreation area featuring volleyball courts, public path-
ways, public restrooms, and security lighting. In exchange for the lease,
the city was to assume “primary responsibility for law enforcement on
the premises” (Kahn 1991a, 28). In addition the university and the city
were to establish a “Use Standards and Evaluation Advising Commit-
tee,” which both hoped would help “bring about a much-hoped-for
truce, and realization of the place as a park that everyone can enjoy”
(Kahn 1991a, 28). While these developments seemed quite ordinary, all
agreed that they portended great change. “To be sure,” the suburban
FIGURE 4.2. Map of People’s Park showing the developments added in 1991.
Map by Jim Robb, University of Colorado.
Contra Costa Times commented, “the one-of-a-kind swath of untamed

land will never be the same. And to that extent an era is ending”
(Boudreau 1991, A3).
After more than 20 years of riots, debate, controversy, neglect, bro-
ken promises, and more riots, the end of the era marked by the city–
university agreement seemed long overdue to many in Berkeley and the
Bay area. To critics of the park in the city government and university ad-
ministration, as well as in the mainstream national and local press, the
need for improvement in the park was a common theme. Comments
such as this were rife in the press at the time: “To some park neighbors
and students, People’s Park, owned by the university, is overrun by
squatters, drug dealers, and the like” (Boudreau 1991, A3) (Figure 4.3).
And as the university’s director of community affairs, Milton Fujii re-
marked, “The park is underutilized. Only a small group of people use
the park and they are not representative of the community” (New York
Times 1991a, 1:39). Sensitive to claims that such sentiments might be
interpreted as announcing a plan to remove the homeless users of the
park, UC spokesperson Jesus Mena declared: “We have no intention to
kick out the homeless. They will still be here when the park changes,
but without the criminal element that gravitates towards the park”
(Boudreau 1991, A3).
For the university, as for other critics of the park, the evident disor-
der of the park invited criminality. To be a functioning open or public
space, it had to be reordered, and the city–university agreement was the
first step in that direction. It had to be reclaimed so that it could be
made available to an appropriate public.
Park defenders saw matters rather differently. For them, People’s
Park—which after all had survived as a user-controlled space for two
FIGURE 4.3. A homeless encampment in the city-controlled section of the east

end of the park, 1994. Photograph by Nora Mitchell; used by permission.
decades despite numerous plans and efforts by the university to reclaim

it—constituted one of the few areas in the San Francisco Bay Area in
which homeless people could live relatively unmolested (Kahn 1991a,
2) and in which other users had pretty much free reign. It was, espe-
cially by contemporary standards, a quite unmediated space. The attrac-
tiveness of People’s Park for homeless people indicated to many park
defenders not that it was a dangerous and out-of-control place but
rather that it was working as it should: as a truly public space. It had de-
veloped as a political space that encouraged unmediated interaction, a
place where the power of the state (and other property owners) could
be kept at bay. Activists felt that the university–city accord jeopardized
some of the primary park institutions that had developed over the years
and that set it apart from city-controlled parks: the grassy assembly
area, the Free Speech stage, and the Free Box (a clothes drop-off and ex-
change) (see Figures 4.1 and 4.3). Without these, they felt that People’s
Park as such would cease to exist. According to Michael Delacour, one
of the founders of the park in 1969, the defense of People’s Park against
the university’s plans was “still about free speech, about giving people a
place to go and just be, to say whatever they want” (Lynch and Dietz
1991, A20).
By the time the university and city were ready to act on their plans
for park development, in the summer of 1991, activists had successfully
linked this aspect of the park—the ability for people “to go and just
be”—to the rights of homeless people. For those opposed to the UC–
city plan, People’s Park since its inception had been regarded as a refuge
for the homeless and other street people. Activists feared that the build-
ing of volleyball courts struck at the heart of the park’s traditional
role—a place to “just be.” As such, it portended ill for homeless park
users and residents. It signaled a desire to see their removal. Recon-
structing the park in such a way that would lead to the removal of the
homeless, they surmised, was tantamount to an erosion of public space.
The development of even volleyball courts had to be resisted.
Homeless residents in the park agreed. In her reply to a reporter
who asked her about the UC–city plans, Virginia, a homeless woman
living in the park, voiced the fears of many homeless people in the park
and of park activists: “You know what this is about as well as I do, it is
only a matter of time before they start limiting the people able to come
here to college kids with an ID.” When the reporter reminded her that
the university promised not to remove the homeless, Virginia re-
sponded: “You look smarter than that. A national monument is being

torn down” (Rivlin 1991a, 27). Oakland Homeless Union activist An-
drew Jackson put the struggles over People’s Park into a larger context.
Looking at the bulldozers at work as redevelopment began in the park,
he commented: “They’re tearing up a dream. . . . Ever since I remember
this has been a place for all people, not just for some college kids to play
volleyball or the white collar. It’s a place to lie down and sleep when you
are tired” (Rivlin 1991a, 27).
Activists and homeless residents alike considered changes in the
park to be related to changes on nearby Telegraph Avenue—the very av-
enue that UC Regents had long ago worried about becoming a center
for “hippies” and other undesirable counterculture figures. Echoing the
arguments made by and against Free Speech activists a generation ear-
lier, People’s Park activists feared that a transformed and “tamed” Peo-
ple’s Park would become a beachhead for the wholesale transformation
of the surrounding neighborhood. “The university says they’re not
against homeless people,” commented homeless activist Curtis Bray
soon after the city–university accord was finalized,
but all the rules and regulations that are coming out for the park are regu-
lations that only affect the homeless community and no one else. . . . They
don’t want their students to be faced on a daily basis with what it is like to
be poor and in poverty. Once they get the cement courts in, they’re going
to want to keep the homeless population out as much as possible. (Kahn
1991a, 2, 28)
Bray predicted that the agreement on People’s Park was just the begin-
ning. “Once People’s Park is off-limits, the homeless are going to go to
[Telegraph] Avenue. The university will then say the avenue is a prob-
lem” (Kahn 1991a, 28). David Nadle, another founder of the park and
later an owner of a world-beat dance club in the city,2 concurred. He de-
nounced the UC–city agreement as a final move toward the total com-
modification and control of space. “The corporate world is trying to
take Berkeley. The park represents a 22-year struggle over corporate ex-
pansion.”3 Berkeley, he claimed, had become “yupped out” (Kahn
1991b, 30).
In the years since the 1969 riots, Telegraph Avenue had experi-
enced a series of transformations. A popular gathering place for Bay
Area teens, the Telegraph Avenue–People’s Park area was both a highly
successful commercial district and one always on the brink of decline.
By the early 1980s, the counterculture flavor of the street (with its nu-
merous locally owned coffee houses, bookstores, record shops, and
street vendors selling everything from political bumper stickers to drug
paraphernalia to locally produced arts and crafts) was beginning to
yield to businesses catering to more affluent students and young profes-
sionals. By mid-decade, chain stores were beginning to expand at the
expense of locally owned businesses. Coffee bars that appealed to the
slumming suburban middle class replaced many of the small restaurants
and “head” shops that had defined the street throughout the 1970s.
Graffiti- and poster-covered walls were replaced with pastel colors and
trendy neon.
As the boom times of the 1980s turned into the bust of the early
1990s, many students in the South Campus area, for whom the up-
heavals of the 1960s were not even a distant memory, had little time
or patience for street activism and street spectacle. Both the park and
the avenue reflected these changes in political and economic climate.
“In a city where protesting was once as common as jogging,” wrote
the San Francisco Chronicle (Lynch and Dietz 1991, A1), “there is lit-
tle tolerance for uprisings.” As park activist Michael Delacour ob-
served, “The students have changed. They know times are tough and
they want to survive” (Lynch and Dietz 1991, A20). Time was scarce
for activism and the community involvement that makes spaces like
People’s Park possible. Many students simply avoided the “untamed
land” of People’s Park. Others students who lived in apartments or
dorms neighboring the park strongly supported the university’s plans
to take control over it.4
In the early 1990s, some of the chain stores moved out of Telegraph
(Figure 4.4), and an air of dilapidation seemed to settle over the avenue
(May 1993, 6) as visible homelessness increased. While many mer-
chants attributed the decline to the physical hazards that People’s Park
and some of the people who used it posed to middle-class shoppers, of-
ficials of the Telegraph Avenue Merchants Association conceded that it
was in fact the image of the park (and the avenue) that was threatening
business success. As one official of the association put it: “If the major-
ity of people think it’s unsafe, unclean, why do they think that? Isn’t it
based on some sort of reality?” (Kahn 1991a, 28). The official did not
directly answer her own question (and if she had, she would have had
to concede that crime rates were no higher around Telegraph than in
other commercial districts of the city). But perhaps, on Thursday, Au-
FIGURE 4.4. The old Miller’s Outpost store, circa 1993. Part of a chain of clothing
shops, the Miller’s Outpost was seen as a symbol of both Telegraph Avenue’s gentri-
fication and its decline. Photograph by author.
gust 1, 1991, others did for her, providing the “reality” to which she re-
ferred.
On that morning, about 20 activists were arrested as they protested
the bulldozers that, in the first step of implementing the UC–city park
accord, began clearing grass and soil along the southern edge of the
central part of the park where two sand volleyball courts were to be
constructed (see Figure 4.2). By that evening, police found themselves
trying to control a full-scale riot, as park defenders battled in the streets
over whether park development could continue. Intense rioting around
the park continued for the next 3 days, and smaller violent conflagra-
tions continued to erupt for almost a week. Police repeatedly fired wood
and putty bullets into crowds, and reports of police brutality were wide-
spread (including the witnessed beating of a member of the Berkeley
Police Review Commission). But neither did protesters refrain from vio-
lence, heaving rocks and bottles filled with urine at the police.5
The papers that week were filled with reports of street skirmishes,
strategic advances by heavily armed police, and the rage felt by many
protesters. Police were accused of beating bystanders, roughing up

homeless residents of the park, and using wood and putty bullets need-
lessly. Police countered that force was necessary to quell the riots,
which included numerous street fires, protesters throwing rocks and
bottles, smashed windows and vandalism along Telegraph Avenue. By
August 6, eight formal complaints of police brutality had been filed
with the Police Review Commission and six with the police department
itself. A Police Commission member had received 50 statements alleg-
ing police abuse, and the commission itself received another 25 calls of
complaint. In addition, an unknown number of police were injured in
the rioting (Rivlin 1991b, 18).
“We offered to negotiate,” club owner David Nadle claimed, “but
this is what we got. Militarily, they have commandeered that part of the
park”—the center zone with the Free Speech area, the human services,
and the Free Box (Kahn 1991c, 11). The police occupation succeeded.
The most intense rioting had all but subsided by Saturday, August 3,
and park defenders conceded defeat. In a rally of protesters in the park
the next day, park founder Michael Delecourt declared: “Basically, we’ve
got no real choice over what happens in this Park anyway” (Auchard
1991, 23)—a remarkable concession after 22 years of tenacious struggle
to maintain user control over the area.
Four days later, the first volleyball games were played in the park.
Seeking to cement what one Park defender had earlier called “domin-
ion, imposing solutions for other people’s own good” (New York Times
1991b, A8), university officials released student employees from their
jobs provided that they would play volleyball in the park. One of the
players, a Berkeley junior and housing office employee, told the San
Francisco Chronicle (Lynch 1991b, A20):
At first I thought “OK, let’s go play volleyball.” But then I realized there was
more at stake and I got a little scared. But I came out here because I want to
see this happen and show my support. People’s Park needs to change. I’ve
only been here once before—most people think the place isn’t safe.
That evening at 7 P.M., despite the absence of disturbances around the

park or along Telegraph Avenue, police arrested 16 people for trespass-
ing after the park—which the university had asserted it wanted to retain
as open space, and from which, the university said, it had no intention
of removing the homeless—was closed (Lynch 1991b).
THE DIALECTIC OF PUBLIC SPACE
The Berkeley housing employee was right. There was a lot more at stake
in People’s Park than volleyball. Most directly, as Duane, a homeless
man who lived in the park put it, “This is about homelessness, and job-
lessness, and fighting oppression” (Koopman 1991, A13). It was, in
other words, about rights, and about the right to the city. But such
rights—to a home and job, and to freedom from oppression—were
structured through a struggle over a right to and for public space, what
such space means, and for whom it is “public.” Among other issues at
stake in the riots were two opposed and perhaps irreconcilable ideologi-
cal visions of the nature and purpose of public space, two opposed vi-
sions that have a great deal of impact on how the right to the city is con-
ceptualized and for whom it is a viable right. Activists and the homeless
people who used the park promoted a vision of a space marked by free
interactions, user determination, and the absence of coercion by power-
ful institutions—in other words, the same sorts of ideological visions
for public space promoted by the Free Speech Movement a generation
earlier. For them, public space was an unconstrained space within
which political movements could organize and expand into wider are-
nas (see N. Smith 1992a, 1993). The vision of representatives of the
university was quite different. Theirs was one of a space that was open
for recreation and entertainment, subject to usage by an appropriate
public (students, middle class residents and visitors, etc.) that used the
space by permission of its owners. Public space is imagined in this vi-
sion to be a controlled and orderly retreat where a properly behaved
public might experience the spectacle of the city. In the first of these vi-
sions, public space is taken and remade by political actors; it is politi-
cized at its very core; and it tolerates the risk of disorder (including re-
cidivist political movements) as central to its functioning. In the second
vision, public space is planned, orderly, and safe. Users of this space
must be made to feel comfortable, and they should not be driven away
by unsightly homeless people or unsolicited political activity. These vi-
sions, of course, are not unique to Berkeley. They are, in fact, the pre-
dominant ways of seeing public space in contemporary cities.6
If these two visions of public space indicate that differing defini-
tions of the right to the city are at stake, then they also correspond more
or less with Lefebvre’s (1991) distinction in The Production of Space be-
tween representational space (appropriated, lived space; space-in-use)
and representations of space (planned, controlled, ordered space).7 Pub-

lic space often, though not always, originates as a representation of
space, as for example a courthouse square, a monumental plaza, a pub-
lic park, or a pedestrian shopping district (Harvey 1993; Hershkovitz
1993; Sorkin 1992). But as people use these spaces, they also become
representational spaces, appropriated in use. Public space is thus so-
cially produced through its use as public space.
In the case of People’s Park, however, the standard chronology was
in many ways reversed. People’s Park began as a representational space,
one that had been taken and appropriated from the outset.8 It was
wrested from the university (who had already taken it from its previous
residents and owners). But whatever the origins of any public space
(planned, appropriated, accidental), its status as “public” is created and
maintained through the ongoing opposition of visions that have been
held, on the one hand, by those who seek order and control and, on the
other, by those who seek places for oppositional political activity and
unmediated interaction.
If public spaces arise out of a dialectic between representations of
space and representational spaces, between the ordered and the appro-
priated, then they are also, and very importantly, spaces for representa-
tion. That is, public space is a place within which political movements
can stake out the territory that allows them to be seen (and heard)—as
the IWW understood so well in its struggles for free speech in the city
in the first decades of the 20th century (Chapter 2). If the right to the
city is a cry and a demand, then it is only a cry that is heard and a de-
mand that has force to the degree that there is a space from and within
which this cry and demand is visible. In public space—on street corners
or in parks, in the streets during riots and demonstrations—political
organizations can represent themselves to a larger population, and
through this representation give their cries and their demands some
force.9 By claiming space in public, by creating public spaces, social
groups themselves become public.10 Only in public space, for example,
can the homeless represent themselves as a legitimate part of “the pub-
lic.” Insofar as homeless people or other marginalized groups remain in-
visible to society, they fail to be counted as legitimate members of the
polity.11 And in this sense, public spaces are absolutely essential to the
functioning of democratic politics (Fraser 1990). Public space is the
product of competing ideologies about what constitutes that space—or-
der and control or free, and perhaps dangerous, interaction.12 These are
not merely questions of ideology, of course. They are, rather, questions

about the very spaces that make political activities possible. To under-
stand, therefore, why a plan to build volleyball courts and public
restrooms in People’s Park led to such extreme violence, to understand
why people can be so passionate about spaces such as People’s Park, we
need to reexamine the normative ideals that drive political activity and
the nature of the spaces we call “public” in democratic societies. Doing
so will make it clear that while many of those who seek to order and
control public spaces and who seek to make them spaces of exclusion
rather than spaces where the cry and demand for the right to the city is
heard (and even promoted), while perhaps being only “little Arnold’s,”
are nonetheless giving voice to a definition of “democracy” that needs
to be resisted at every turn.
THE IMPORTANCE OF PUBLIC SPACE

IN DEMOCRATIC SOCIETIES
Public space occupies an important—but contested—ideological posi-

tion in democratic societies. The Supreme Court, as we have seen
(Chapter 2), bases its public forum doctrine on the notion that since
“time immemorial” people have used the public spaces of the city—the
streets, parks, and squares—as gathering places for “communicating be-
tween citizens” and “discussing public questions” (Hague v. CIO 1939).
But, as we have also seen, just how and where people are to meet, under
what conditions they are to do so, and what they are able to discuss are
all themselves points of struggle. The central contradiction at the heart
of public space is that it demands a certain disorder and unpredictabil-
ity to function as a democratic public space, and yet democratic theory
posits that a certain order and rationality are vital to the success of dem-
ocratic discourse. In practice, the limits and boundaries of “democracy”
seem to be determined as much through transgression—as with the
Free Speech Movement’s insistence on using the campus, against the
will of the university, as a space for political organizing—as through le-
gal or bureaucratic ordering. Public space must therefore be understood
as always historically and socially contingent, even as it is politically
necessary. Attention needs to be paid to the specific practices through
which public space is produced and how the power to determine its use
is arrayed.
All that said, it is nonetheless important to sketch, even if only very

briefly, the history of public space as both a form and an ideology. The
notion of urban public space can be traced back at least to the Greek
agora and its function as “the place of citizenship, an open space where
public affairs and legal disputes were conducted . . . ” (Hartley 1992,
29). While the agora was thus a political space, “it was also a market-
place, a place of pleasurable jostling where citizens’ bodies, words, ac-
tions, and produce were all on mutual display, and where judgments,
decisions, and bargains were made” (Hartley 1992, 30). Politics, com-
merce, and spectacle were juxtaposed and intermingled in the public
space of the agora. It provided a meeting place for strangers, whether
citizens, buyers, or sellers, and the ideal of public space in the agora en-
couraged nearly unmediated interaction—the first vision of public
space referred to above. In such “open and accessible public spaces and
forums,” as Iris Marion Young (1990, 119) has put it, “one should ex-
pect to encounter and hear from those who are different, whose social
perspectives, experience and affiliations are different.”13 One should ex-
pect, that is, urban experiences, defined by conflicting demands for the
right to the city.
Young is speaking specifically of a normative ideal of public space.
In “actually existing democracies” (Fraser 1990), the functioning of
public spaces has rarely lived up to the ideal. The normative ideal that
Young points to has its echo in Habermas’s (1989) analysis of the
(aspatial) normative public sphere, which argues that the bourgeois
public sphere developed in early modern Europe as the ideal of a suite
of institutions and activities that mediated the relationship between the
state and society (see Howell 1993; Calhoun 1992). In this normative
sense, the public sphere was where “the public” was organized and rep-
resented (or imagined). The public sphere is normative, because it is
where all manner of social formations should find access to the struc-
tures of power within a society (Habermas 1989). Many theorists (e.g.,
Fraser 1990; Hartley 1992; Howell 1993) contend that public space
serves as the material location where social interactions and public ac-
tivities of all members of “the public” occur. Public space is the space of
the public.
Just what that “space” is, however, is a point of deep contention. As
has already been made clear, the streets and parks of the city, like the
Greek agora, Roman forums, or 18th-century German coffeehouses
(Habermas 1989) before them, have never simply been places of free,
unmediated interaction. Rather, they have always also been spaces of

exclusion (Fraser 1990; Hartley 1992). The public that met in these
spaces was carefully selected and homogeneous in composition (contra
Young’s ideal). It consisted of those with power, legal standing, and re-
spectability, and in this exclusiveness the roots of the second vision of
public space can be seen. In Greek democracy, for example, citizenship
was a right denied to slaves, women, and foreigners. None of them had
standing in the public spaces of Greek cities, even as their labor (and
their money) may have been welcomed in the agora. They were for-
mally excluded from the political activities of the public space.
And in American history, of course, the admittance of women, the
propertyless, and people of color into the formal ranks of “the public”
has been startlingly recent (and not yet really complete). Foreigners are
still not considered part of the public (and recent changes in immigra-
tion law have in fact eroded rights for many noncitizen residents).
Women, some of the propertyless, and people of color have only won
entrance to “the public” through concerted social struggle, demanding
the right to be seen, to be heard, and to directly influence the state and
society. As in other Western countries, notions of “the public” and the
nature of public democracy played off and developed dialectically with
both the fact and the ideology of private property and the private
sphere. The ability for citizens to move between private property and
public space determined the nature of public interaction in the develop-
ing democracy of the United States (Fraser 1990; Habermas 1989;
Marston 1990). In the context of an evolving capitalist American state,
citizenship is defined through a process whereby “owners of private
property freely join together to create a public, which forms the critical
functional element of the public realm” (Marston 1990, 445). To be
public means having access to private space to retreat to (so that
publicness can remain voluntary).
Each of these spheres—the public and the private—of course has
been constrained and defined by gender, class, and race. By the end of
the 18th century, according to Richard Sennett (1992, 18–19, emphasis
in the original):
The line drawn between public and private was essentially one on which
the claims of civility—epitomized by cosmopolitan, public behavior—
were balanced against the claims of nature—epitomized by the family. . . .
[W]hile man made himself in public, he realized his nature in the private
realm, above all in his experiences within the family.
The private sphere was the home and refuge, the place from which
white propertied men ventured out into the democratic arena of public
space.14 The public sphere of America and other capitalist democracies
was thus understood as a voluntary community of private (and usually
propertied) citizens. By “nature” (though really by custom, economics,
franchise, law, and sometimes outright force) women, nonwhite men,
and the propertyless were denied access to the public sphere in every-
day life.15 Built on exclusions, the public sphere was thus a “profoundly
problematic construction” (Marston 1990, 457).
For the historian Edmund Morgan (1988, 15), the popular sover-
eignty that arose from the split between publicity and privacy was a fic-
tion in which citizens “willingly suspended disbelief” as to the improba-
bility of a total public sphere.16 The normative idea of the public sphere
holds out the hope that a representative public can meet (Hartley 1992).
The reality of public space and the public sphere is that Morgan’s “fic-
tion” is less an agreeable acquiescence to representation and more “an
exercise in ideological construction with respect to who belongs to the
national community and the relationship of ‘the people’ to formal gov-
ernment” (Marston 1990, 450). It is precisely a contest over who counts
as Morgan’s “citizens” (see Brown 1997).
As ideological constructions, contested ideals such as “the public,”
public space, and the public sphere take on double importance. Their
very articulation implies a notion of inclusiveness that becomes a rally-
ing point for successive waves of political activity. Over time, such polit-
ical activity has broadened definitions of “the public.” It is no longer so
easy (though still possible) to exclude women, people of color, and
some of the propertyless from a formal voice in the affairs of state and
society. In turn, redefinitions of citizenship accomplished through
struggles for inclusion have reinforced and even transformed normative
ideals incorporated in notions of the public sphere and public space. By
calling on the rhetoric of inclusion and interaction that the public
sphere and public space are meant to represent, excluded groups have
been able to argue for their rights as part of the active public—to make a
claim for a right to the city. And each (partially) successful battle for in-
clusion in “the public” conveys to other marginalized groups the impor-
tance of the ideal as a point of political struggle (even as it also calls op-
ponents of widening “the public” to the barricades, or at least to the
lofty pulpits of the right-wing think tanks).
In these struggles for inclusion, the distinctions between the public
sphere and public space assume considerable importance. The public
sphere in the sense that Habermas developed it and many of his critics
have refined it is a universal, abstract sphere in which democracy oc-
curs. The materiality of this sphere is, so to speak, immaterial to its
functioning. Public space, meanwhile, is material. It constitutes an ac-
tual site, a place, a ground within and from which political activity
flows.17 This distinction is crucial, for it is “in the context of real public
spaces” that alternative movements may arise and contest issues of citi-
zenship and democracy (Howell 1993, 318).
If contemporary trends signal an erosion of the first vision of public
space as the second becomes more prominent (see below; Crilley 1993;
Davis 1990; Fyfe 1998; Gold and Revill 2000; Goss 1992, 1993; Sennett
1992; Sorkin 1992), then spaces such as People’s Park become, in
Arendt’s words, “small hidden islands of freedom” (quoted in Howell
1993, 313).18 Such hidden islands are created when marginalized
groups take space and use it to press their claims, to cry out for their
rights. And that was precisely how activists understood their defense of
People’s Park in the face of the university’s desire to transform and
better control it. As the East Bay Express observed (Kahn 1991c, 11):
“Ultimately, they claim, this is still a fight over territory. It is not just
two volleyball courts; it’s the whole issue of who has a rightful claim to
the land.” Michael Delacour argued that People’s Park was still about
free speech, and the homeless activist Curtis Bray claimed that “they are
trying to take the power away from the people” (New York Times 1991a,
1:39). For these activists, People’s Park was a place where the rights of
citizenship could be expanded to the most disenfranchised segment of
contemporary American democracy: the homeless. People’s Park pro-
vided the space for representing the legitimacy of homeless people with-
in “the public.” In just this sense, People’s Park was exactly that sort of
Hyde Park that Matthew Arnold railed against. Like the streets of San
Diego for the IWW 80 years earlier, People’s Park was, for homeless
people, a deeply political space.
THE POSITION OF THE HOMELESS

IN PUBLIC SPACE AND AS PART OF THE PUBLIC
People’s Park has been recognized as a refuge for homeless people since
its founding, even as elsewhere in Berkeley the city has actively re-
moved squatters and homeless people (sometimes rehousing them in a
disused city landfill) and become one of the leading innovators of puni-
tive anti-homeless laws (Dorgan 1985, B12; Harris 1988, B12; Levine
1987, C1; Los Angeles Times 1988, I3; Stern 1987, D10; Wells 1994,
A14). Consequently, the park has become a relatively safe place for the
homeless to congregate—one of the few such spots in an increasingly
hostile Bay Area (Los Angeles Times 1990, A1). Around the Bay, the
homeless have been repeatedly cleaned out of San Francisco’s United
Nations Plaza near City Hall, Golden Gate Park, and other public gath-
ering places; in Oakland, loitering is actively discouraged in most parks
(Los Angeles Times 1989b, 13; 1990, A1; MacDonald 1995; New York
Times 1988b, A14).
In part, the desire to sweep the homeless from visibility responds to
the central contradiction of homelessness in a democracy composed of
private individuals and private property (see Deutsche 1992; Mair 1986;
Marcuse 1988; Ruddick 1990; N. Smith 1989; Takahashi 1998; Waldron
1991). This contradiction turns on publicity: the homeless are all too
visible. Although homeless people are nearly always in public, they are
rarely counted as part of the public. Homeless people are in a double
bind. For them, socially legitimated private space does not exist, and so
they are denied access to public space and public activity by the laws of
a capitalist society that is anchored in private property and privacy
(Waldron 1991; Blomley 1994a, 1998, 2000a). For those who are al-
ways in the public, private activities must necessarily be carried out
publicly.19 When public space thus becomes a place of seemingly illegit-
imate behavior, our notions of what public space is supposed to be are
thrown into doubt. Now less a location for the “pleasurable jostling of
bodies” and the political discourse imagined as the appropriate activi-
ties of public space in a democracy, public parks and streets begin to
take on aspects of the home. They become places to go to the bathroom,
sleep, drink, or make love—all socially legitimate activities when done
in private but seemingly illegitimate when carried out in public (Stae-
heli 1996).
As importantly, since citizenship in modern democracy (at least
ideologically) rests on a foundation of voluntary association, and since
homeless people are involuntarily public, homeless people cannot be, by
definition, legitimate citizens.20 In consequence, homeless people have
proven threatening to the exercise of rights since they seem to threaten
to expose the existence of the “legitimate”—that is, voluntary—public
as a contradiction if not a fraud: voluntariness is impossible if some are
necessarily excluded from the option of joining in or not.
The existence of homeless people in public thus undermines one of
the guiding fictions of democracy. This is why George Will (1987) is ad-
amant when he argues (as we saw in Chapter 1) that “Society needs or-
der, and hence has a right to a minimally civilized ambiance in public
spaces. Regarding the homeless, this is not merely for aesthetic reasons
because the unaesthetic is not merely unappealing. It presents a specta-
cle of disorder and decay that becomes contagion.” The ideological
foundation of modern democracy, with all its practical contradictions, is
apparently rather fragile. For reasons of order, then, the homeless are
continually pushed out of public space, and they are excluded from
most definitions of the legitimate public (notice, in Will’s formulation,
how there is simply no consideration of the rights of homeless people as
citizens). In much writing about order and the city, the homeless have
become something of an “indicator species,” diagnostic of the presumed
ill health of public space and of the need to gain control, to privatize, or
to otherwise rationalize public space in urban places.21 Whether in New
York City (N. Smith 1989, 1992a, 1992b; Zukin 1995), Columbus (Mair
1986), Los Angeles (Ruddick 1996; Takahashi 1998), or Berkeley, the
presence of homeless people in public spaces suggests to many an irra-
tional and uncontrolled society in which appropriate distinctions be-
tween public and private behavior are muddled (see Cresswell 1996).
Hence, those who are intent on rationalizing “public” space have neces-
sarily sought to remove the homeless—to banish them to the interstices
or margins of civic space, or to push them out altogether—in order to
make room for “legitimate” public activities (Mair 1986; Marcuse 1988;
Lefebvre 1991, 373).
When, as in Berkeley’s People’s Park, New York’s Tompkins Square
and Bryant parks, or San Francisco’s Golden Gate Park (Karacas 2000),
actions are taken against park users by closing public space or exercis-
ing greater social control over park space, the press explains these ac-
tions by saying that “the park is currently a haven for drug users and
the homeless” (Los Angeles Times 1991b, A10; see also Boudreau 1991,
A3; Koopman 1991, A13; Los Angeles Times 1991a, A3; 1992, A3; New
York Times 1988a, A31). Such statements, besides creating what are of-
ten invidious associations, pointedly ignore any “public” standing that
homeless people may have, just as they ignore the possibility that
homeless people’s usage of a park for political, social, economic, and
residential purposes may constitute for them a legitimate and even nec-
essary use of public space. When UC officials claimed that the homeless
residents of People’s Park were not “representative of the community”
(Boudreau 1991, A3), they in essence denied social legitimacy to home-

less people and their (perhaps necessary) behaviors. By transforming
the park, UC hoped that illegitimate activity would be discouraged.
That is to say that the homeless could stay as long as they behaved “ap-
propriately”—and as long as the historical, normative, ideological
boundary between public and private was well patrolled. But that
boundary is itself a product of constant struggle—especially now in the
contemporary city where the neoliberal assault on all things public is in
full swing.
PUBLIC SPACE IN THE CONTEMPORARY CITY
Public space is more than just a “Hyde Park”—as crucial as that func-
tion is. It is also a representation of the good that comes from public con-
trol and ownership, as contested and problematic as these may be. This
is a corollary of the vision of public space as a place of relatively unme-
diated interaction: it is a vision of public space that understands a
space’s very publicness as a good in and of itself, that understands there
to be a collective right to the city. And this vision and practice of public
space is increasingly threatened in the American city (as the defenders
of People’s Park recognized). The threat here is not from the disorderly
behaviors of homeless people, as so many argue, but rather from the
steady erosion of the ideal of the public, of the collective, and the steady
promotion of private, rather than democratic, control of space as the so-
lution to perceived social problems.
The public space of the modern city has always been a hybrid, and
certainly a contradictory, space. It is a hybrid of commerce and politics
(Sennett 1992, 21–22) in which, ideally at least, the anarchy of the mar-
ket meets the anarchy of politics to create an interactive, democratic
public. In the 20th century, however, markets have increasingly been
severed from politics, with, ironically, the latter being banished, fairly
completely, from public space. The very success of struggles for inclu-
sion—by women, African Americans, gays, and the propertyless—has
led to a strong backlash that has sought to reconfigure urban public
space in such a way as to limit the threat of democratic social power to
dominant social and economic interests (Fraser 1990; Harvey 1992).
These trends have led to the constriction of public space, even as
various social movements continue to struggle for its expansion. Inter-
active, discursive politics has effectively been banned from the natural
gathering places in the city. Corporate and state planners have created
environments that are based on a desire for security more than interac-
tion, for entertainment more than (perhaps divisive) politics (Crilley
1993; Garreau 1991; Goss 1992, 1993, 1996; Sorkin 1992; Zukin 1995).
One of the results of contemporary urban planning (especially in the
post-World War II period) has been the growth of what Sennett (1992)
calls “dead public spaces,” such as the barren plazas that surround so
many modern office towers. A second result, one that evolved as a par-
tial response to the failure of dead public spaces, has been the develop-
ment of festive spaces that encourage consumption—downtown or sea-
side festival marketplaces, gentrified historic districts, and even a
certain kind of mall (Figure 4.5). Though seemingly so different, both
“dead” and “festive” spaces are premised on a perceived need for order,
surveillance, and control over the behavior of the public (see Fyfe
1998). As Goss (1993, 29–30) has remarked, we—as consumers and as
users of public spaces—are often complicit in the severing of market
and political functions. He points to the case of what he calls the
“pseudo-public” spaces of the contemporary shopping mall:
Some of us are . . . disquieted by the constant reminders of surveillance in

the sweep of cameras and the patrols of security personnel [in malls]. Yet
those of us for whom it is designed are willing to suspend the privileges of
public urban space to its relative benevolent authority, for our desire is
such that we will readily accept nostalgia as a substitute for experience,
absence for presence, and representation for authenticity. (see also Fyfe
and Bannister 1995, 1998; Oc and Tiesdell 2000; Williams, Johnstone, and
Goodwin 2000)
Goss (1993, 28) calls this nostalgic desire for the market “agoraphilia”—
a yearning for “an immediate relationship between producer and con-
sumer.”22
Such nostalgia is rarely innocent, however (see Lowenthal 1985). It
is, rather, a highly constructed, corporatized image of a market quite
unlike the idealization of the agora as a place of commerce and politics
(Hartley 1992). In the name of comfort, safety, and profit, political ac-
tivity is replaced in spaces like the mall, festival marketplace, or rede-
signed park (such as New York’s Bryant) by a highly commodified spec-
tacle designed to sell—to sell either goods or the city as a whole (Boyer
1992; Crawford 1992; Garreau 1991, 48–52; Goss 1996; Mitchell and
FIGURE 4.5. Horton Plaza in San Diego. An example of the playful “festival mar-
ket” type of privatized public space that has become so important to downtown re-
development. Photograph by Susan Millar; used by permission.
Van Deusen 2002; Zukin 1995). Planners of pseudopublic spaces such

as malls, corporate plazas and redeveloped parks have found that
control-led diversity is more profitable than the promotion of uncon-
strained social differences (in the sense that Iris Marion Young uses the
term) (Crawford 1992; Goss 1993, 1999; Kowinski 1985; A. Wilson
1992; Young 1990; Zukin 1991). Hence, even as new groups are claim-
ing greater access to the rights of society, the homogenization of “the
public” continues apace, since the sort of diversity that pseudopublic
spaces encourage is a diversity bound up in the unifying, leveling, ho-
mogenizing forces of commodity, brand-oriented consumption (Klein
1999).
This homogenization typically has advanced by “disneyfying” space
and place—creating landscapes in which every interaction is carefully
planned (Sorkin 1992; A. Wilson 1992; Zukin 1991), right down to spe-
cifically planning the sorts of “surprises” one is supposed to encounter
in urban space. Market and design considerations thus displace the id-
iosyncratic and extemporaneous interactions of engaged people in the
determination of the shape of urban space in the contemporary world.
Representations of space come to dominate representational spaces
(Lefebvre 1991; Crilley 1993, 137; Zukin 1991). Designed and con-
trived diversity creates marketable landscapes, as opposed to unscripted
social interaction, which creates places that may sometimes threaten ex-
change value. The “disneyfication” of space consequently implies the
increasing alienation of people from the possibilities of unmediated so-
cial interaction and increasing control by powerful economic and social
actors over the production and use of space.
Imposing limits and controls on spatial interaction has been one of
the principle aims of urban corporate planners during this century (Da-
vis 1990; Fyfe 1998; Gold and Revill 2000; Harvey 1989; Lefebvre
1991). The territorial segregation created through the expression of
social difference has increasingly been replaced by a celebration of con-
strained diversity. The diversity represented in shopping centers, “mega-
structures,” corporate plazas, and (increasingly) public parks is carefully
constructed (Boyer 1992).23 Moreover, the expansion of a planning and
marketing ethos into all manner of public gathering places has created a
“space of social practice” that sorts and divides social groups (Lefebvre
1991, 375) according to the dictates of comfort and order rather than
those of political struggle. But, as Lefebvre (1991, 375) suggests, this is
no accident. The strategies of urban and corporate planners, he claims,
classify and “distribute various social strata and classes (other than the
one that exercises hegemony) across the available territory, keeping
them separate and prohibiting all contacts—these being replaced by
signs (or images) of contact.”24
This reliance on images and signs—or representations—entails the
recognitions that a “public” that cannot exist as such is continually
made to exist in the pictures of democracy we carry in our heads: “The
public in its entirety has never met at all . . . ”; yet, “the public [is] still
to be found, large as life, in the media” (Hartley 1992, 1). Hence,
“[c]ontemporary politics is representative in both senses of the term; cit-
izens are represented by a chosen few, and politics is represented to the
public via the various media of communication. Representative political
space is literally made of pictures—they constitute the public domain”
(Hartley 1992, 35, emphasis in original). I will return to the importance

of symbolic politics and the resistance it calls up in a moment; for now
it is sufficient to note that the politics of symbolism, imaging, and repre-
sentation increasingly stand in the stead of a democratic ideal of direct,
less mediated, social interaction in public spaces. In other words, con-
temporary designers of urban “public” space increasingly accept signs
and images of contact as more natural and desirable than contact itself.
Public and pseudopublic spaces perform a vital role in representa-
tional politics. The overriding purpose of public space becomes the cre-
ation of a “public realm deliberately shaped as theater” (Crilley 1993,
153; see also Glazer 1992). “Significantly, it is a theater in which a paci-
fied public basks in the grandeur of a carefully orchestrated corporate
spectacle” (Crilley 1993, 147).25 This is the purpose of the carefully
controlled “public” spaces such as the corporate plazas, library grounds,
and suburban streets critiqued by Davis in his important City of Quartz
(1990, 223–263) and the festival marketplaces, theme parks, historical
districts, and so forth analyzed by the contributors to Sorkin’s landmark
Variations on a Theme Park (1992). It is certainly the goal of mall build-
ers (Garreau 1991; Goss 1993; Kowinski 1985; A. Wilson 1992).
These spaces of controlled spectacle narrow the list of people eligi-
ble to form “the public.” Public spaces of spectacle, theater, and con-
sumption create images that define the public, and these images—
backed by law—exclude as “undesirable” the homeless and the political
activist. Thus excluded from these public and pseudopublic spaces,
their legitimacy as members of the public is put in doubt. And thus un-
represented in our images of “the public,” they are banished to a realm
outside of politics because they are banished from the gathering places
of the city.
How “the public” is defined and imaged (as a space, as a social en-
tity, and as an ideal) is quite important. As Crilley (1993, 153) shows,
corporate producers of space tend to define the public as passive, recep-
tive, and “refined.” They foster the “illusion of a homogenized public”
by filtering out “the social heterogeneity of the crowd, [and] substitut-
ing in its place a flawless fabric of white middle class work, play, and
consumption . . . with minimal exposure to the horrifying level of
homelessness and racialized poverty that characterizes [the] street envi-
ronment” (Crilley 1993, 154). And, by blurring the distinctions be-
tween private property and public space, they create a public that is nar-
rowly prescribed. The deliberate blurring of carefully controlled spaces
(such as Disneyland, Boston’s Fanueil Hall, or New York’s World Finan-

cial Center) with notions of public space “conspires to hide from us the
widespread privatization of the public realm and its reduction to the
status of commodity” (Crilley 1993, 153). The irony, of course, is that
this privatization of public space is lauded by all levels of government
(e.g., through public–private redevelopment partnerships) at the same
time that the privatization of public space by homeless people (their use
of public space for what we consider to be private activities) is excori-
ated by urban planners, politicians, and social critics alike.
THE END OF PUBLIC SPACE?

The Rise of Open Space
Have we reached, then, “the end of public space” (Sorkin 1992)? Has
the dual (though so different) privatization of public space by capital
and by homeless people created a world in which designed diversity has
so thoroughly replaced the free interaction of strangers that the ideal of
an unmediated political public space is wholly unrealistic? Have we cre-
ated a society that expects and desires only private interactions, private
communications, and private politics, that reserves public spaces solely
for commodified recreation and spectacle? Many cultural critics on the
left believe so, as do such mainstream commentators as Garreau (1991)
and such conservatives as Glazer (1992). Public spaces are, for these
writers, an artifact of a past age, an age of different sensibilities and dif-
ferent ideas about public order and safety, when public spaces were sta-
ble, well-defined, and accessible to all. As we have already seen, such
sensibilities are nothing more than nostalgic fantasy: the public spaces
of the past were anything but inclusive, except insofar as concerted so-
cial protest and conflict opened them up for new groups of people and
new kinds of politics. That is, then as now, public spaces were only
“public” to the degree that they were taken and made public. Definitions
of public space and “the public” are not universal and enduring; they
are produced through constant struggle in the past and in the present.
In People’s Park, as in so many other places (such as the streets of Seat-
tle and Washington during ministerial meetings, or over the fight to
preserve community gardens in New York), that struggle continues.
But that said, the places where the struggle may open up—that is,
the opportunities for taking space—are steadily diminishing as new
forms of surveillance and control are implemented (even though many

cities are in fact increasing their stock of open spaces and parklands).
During the period of rapid suburbanization and urban renewal in the
decades after World War II, North American cities “vastly increased
open space, but its primary purpose was different [than public spaces
with civic functions], i.e., to separate functions, open up distance be-
tween buildings, allow for the penetration of sunlight and greenery, not
to provide extensive social contact” (Greenberg 1990, 324).26 There are
many reasons for the growth of open space: preserving ecologically sen-
sitive areas, maintaining property values by establishing an undevelop-
able greenbelt, providing places for recreation, removing flood plains
from development, and so on. But in each case open space serves func-
tional and ideological roles that differ from political public spaces.
Indeed, open spaces often share characteristics with pseudopublic
spaces: restrictions on behavior and activities are taken for granted;
prominent signs designate appropriate uses and outline rules governing
where one may walk, ride, or gather. These are highly regulated
spaces.27
In Berkeley, UC officials recognized this distinction between open
and public space. During various People’s Park debates, speakers for the
university never referred to the park as public space (even though the
land is owned by a public entity), though they frequently reiterated
their commitment to maintaining the park as open space (Boudreau
1991, A3). Berkeley City Council member Alan Goldfarb, an occasional
critic of university plans, also traded on the differences between public
and open space. Speaking of People’s Park, he celebrated the virtues of
public space and then undermined them:
It’s a symbol for the police versus the homeless, the have-nots versus the
haves, progress versus turmoil, all the undercurrents most troubling in the
city. You’ve got pan-handling going on, the business community nearby,
the town–gown tensions. You have anarchists and traditionalists. People’s
Park becomes a live stage for all these actors. For many people around the
world, Berkeley is People’s Park. (Kahn 1991a, 28, emphasis in original)
But if “[t]hese things are real and important,” he continued, it is even

more important to make People’s Park “a viable open space” that would
provide a bit of green in a highly urbanized area (Kahn 1991a, 28). The
end of public space might consist as much in its deracination as in its
co-optation by corporate or state interests.
New Public Spaces?
But there is an even stronger argument for the end of public space than
its usurpation by a suburban ideal of open space. Many analysts suggest
that the very nature of space has been transformed by developments in
communications technology—even to the point where the right to the
material city is decreasingly necessary, so long as one has access to the
“city of bits” (W. Mitchell 1995). They maintain that the electronic
space of the media and computer networks has opened a new frontier of
public space in which the material public spaces in the city are super-
seded by the forums of (perhaps interactive) television, talk radio, and
the web. For many scholars (not to mention all those entrepreneurs
who rode the dot-com wave to untold riches—at least until the wave
crashed on rocky shores) modern communications technology now
provides the primary site for discursive public activity in general and in
politics in particular. Indeed, such a sense was all-pervasive, perhaps
best gauged by the desire of newspapers to ever more closely track the
pulse of “the people” by printing transcripts of “what they’re saying on
the web.” Recall how not a political or social event of the mid- to late
1990s—Princess Diana’s death, the Monica scandal, even the various
crises in Kosovo and Belgrade—could pass without every newspaper in
the land tuning into the various chat rooms so they could track for
those of us less well connected just what “we” were thinking.28 And, in-
deed, there was something of an explosion of discursive populism
spurred by the web and talk radio and TV. But defining chat rooms, fax
broadcasts, talk radio, and television as “public space” is not an
unproblematic move, even if the media (newspapers and so forth) have
always been bound up in the construction of national “publics” (Ander-
son 1991; Habermas 1989). If we have indeed created “the first
cyberspace nation” (Roberts 1994, C1), then our very conceptions of
citizenship have been transformed without much by way of public de-
bate—or much by way of the struggle for inclusion that typically marks
such transformations. One might immediately want to ask who has
been excluded in this move. One might also want to know what it
means when being part of “the public” no longer requires being in the
public, but instead can be accomplished from the private home by tun-
ing the radio, switching the TV channel, or dialing up the modem. And
yet these questions seem rarely to be raised.
Consider, for example, the rather optimistic account of electronic
space as public space by the Mass Media Group (MMG) of the Commit-
tee for Cultural Studies at CUNY Graduate School. Writing before the
explosion of the web and focusing on television, the MMG challenged
the second part of what they deemed the “unquestionable truism” that
“the media today is the public sphere, and this the reason for the degra-
dation of public life if not its disappearance” (Carpignano et al. 1990,
33, emphasis in original). The MMG argues instead that the evolution
of television talk shows has transformed “the public” from an audience
for mass politics and entertainment into a discursive interactive en-
tity—a proto-web, perhaps. TV talk shows “constitute a ‘contested
space’ in which new discursive practices are developed in contrast to
the traditional modes of political and ideological representation” (Car-
pignano et al. 1990, 35).
For the MMG, talk shows are now “common places” that produce
“common sense” in a manner analogous to idealized town meetings of
times past: “Common sense could also be defined [within these shows]
as the product of an electronically defined common place which, by vir-
tue of being electronically reproduced, can be considered a public
space. In its most elementary form, going public today means going on
the air” (Carpignano et al. 1990, 50). MTV put it even more bluntly af-
ter the 1992 presidential campaign (and reprising this, too, for the 1996
and 2000 campaigns). On November 9, 1992, the network ran full-page
ads in newspapers across the nation “salut[ing] the 17 million 18–29
year olds who stood up, turned out and voted.” The advertisements car-
ried the logo “MTV, the community of the future.” As with MTV’s vote
drive campaign as a whole, the ads were “presented by AT&T, The Ford
Motor Company, and your local cable company.” MTV’s campaign tem-
pers the MMG’s optimistic assessment of the power of the electronic
media “in the age of chatter”: corporate sponsorship, MTV makes clear,
is what makes public space possible.29 The similarities between what
the MMG hails as the “therapeutic” discursive practices of the talk show
(Carpignano et al. 1990, 51; see also Sennett 1992, 12, 269–293) and
the privatization and corporate control of public space are readily ap-
parent. In both cases, the material structure of the medium closes off
political possibilities and opportunities. The “public” gathering in the
“public space” of the afternoon talk show (contra the MMG’s claim that
it is unmediated) is a selected audience that is scripted in advance.30
Members of the audience are expected to be articulate, to stake out con-
troversial positions, and to add to the spectacle while at the same time
not alienating sponsors or viewers. MTV’s structuring of the community

of the future, along with the MMG’s assessment of contemporary public
space, provides ample evidence that the sorts of commodification of
public space that are so apparent in the material realm are also well ad-
vanced in the electronic.
As importantly, if it is true that “going public . . . means going on
the air,” this undermines the use of material public spaces for demo-
cratic politics. If the MMG is correct, then politics will henceforth only
be possible through the media, only through highly structured and
dominated electronic “spaces.” The MMG puts the best face on this sit-
uation by suggesting that the nature of the talk-show format, its com-
promise between confrontation and shock, “becomes an opening for the
empowerment of an alternative discursive practice” (Carpignano et al.
1990, 52). Yet, this empowerment is almost exclusively a private,
solipsistic empowerment of therapy, and one which has little to say
about alternative political projects.31 Television chat shows, like “dis-
neyfied” city spaces, create a certain kind of “public”—one in which
individuals are allowed to get angry, albeit in their place and in a highly
scripted manner, but one that is ultimately nonthreatening to estab-
lished structures of order and power. The spectacle of “the public” is
dissolved into public spectacle.
But TV is old media; it is discredited one-to-many broadcasting.32
Surely the one-to-one, one-to-many, and many-to-one capabilities of the
Internet allow the best chance yet to realize the ideal of unmediated
interaction and communication embodied in some visions of public
space. When I first started writing about People’s Park and public space,
the Internet revolution was just emerging, but even then some of the di-
rections in which the revolution was going to be pushed were clear. The
federal government worked assiduously to privatize most of the infra-
structure during the early 1990s, suggesting that the Internet was not to
be seen as primarily a public good. But what was hard to predict was just
how quickly and how thoroughly the “space” of the web would be com-
mercialized, essentially commodifying vaunted one-to-one communica-
tion in ways it never had been before. There is no doubt that the net has
been a vital force for political organizing. It has become an indispens-
able means of communicating between activists and activist groups. The
groundswell of prodemocratic protests that have greeted every major
economic and political summit during the past few years might not
have had the force—and surely could not have organized the sheer
numbers and varieties of people—that they have without the communi-
cative capabilities of the web. But in this sense the role of the web is to
serve the same function as the telephone and the newsletter used to—
only much more efficiently and in a way that allows close to real-time
communication across vast distances. This is important, but what is
more important were the people—their bodies and their costumes, even
their rocks and bottles—on the city streets. It was their visibility in the
material public spaces of the summit cities that has made the difference.
All the web communications in the world would not have nearly shut
down the Seattle meeting of the World Trade Organization or destroyed
the Genoa talks. But people in the streets did.
What is remarkable about the web, to put all this another way, is
just how little public visibility it has. Indeed, its main function is to fa-
cilitate private (or small-group) communication, to make more efficient
the publishing of newsletters, magazines, and tracts (which can all now
reach a larger potential audience), and to act as a giant catalog show-
room. Just as importantly, electronic communication embodies a rather
different ideal of public space than that of the agora (despite the pro-
miscuous mixing of market and politics that is so much a part of the
web), and it responds to a different set of social desires. “What society
expects, and [cyberspace] exemplifies, is to conduct itself via a private
ethic of transmissive communication” (Hillis 1994, 191), and the web is
becoming the perfect technology for this desire. Such a desire, and its
fulfillment, however, is remarkably limited and diminishing: as Setha
Low (2000, 247) notes, “in cyberspace we cannot see, hear, touch, and
feel each other, much less our environment.” And, of course, in
cyberspace, we cannot live. A fully electronic public space renders
marginalized groups such as the homeless even more invisible to the
workings of politics (Hillis 1994): there is literally no room in the
Internet’s “public space” for a homeless person to exist—to sleep, to re-
lax, to attend to bodily needs. Nor can the needs, desires, and political
representations of the homeless ever be seen in the manner that they can
be seen in the public spaces of the city. It is a limited political world, in-
deed, that assumes that only those who can “go on the air” need to “go
public” with their representations.
THE NECESSITY OF MATERIAL PUBLIC SPACES
The vision of the electronic future as public space has proven, by any
number of events—from the uprisings in Tiananmen Square, Leipzig,
Prague, and Budapest in 1989, to the anti-corporate globalization pro-

tests in Seattle, Bangkok, Quebec City, Davos, and Genoa at the dawn of
the new century, to the growing “take back the streets” movements in
countless cities in Europe and North America—to be little more than
wishful thinking. It has proven, despite the importance of electronic
communications for organizing, to be more a dream of control than
liberatory democracy. This is so simply because public democracy re-
quires public visibility, and public visibility requires material public
spaces. This is not to say that electronic media are not important—quite
the contrary—but it is to say that they are not even close to sufficient.
Consider the uprising in Tiananmen Square. Electronic communi-
cations—the telephone and fax in particular—played an important role
in organizing the protest, but the uprising truly began only with the
transformation of the square itself from a monumental and official space
(a space of representation) “into a genuine place of political discourse”
(a representational space) (Calhoun 1989, 57). Students, workers, and
other activists “met in small groups of friends, large audiences for
speeches, and even more or less representative council for debating
their collective strategy and carrying out self-government” (Calhoun
1989, 57). But the important thing is that this mass movement took
over a specific—and centrally important—physical space. As Hersh-
kovitz (1993, 417) suggests, the appropriation of Tiananmen served as
incisive “evidence of the extraordinary power of apparently ‘placeless’
movements to create and transform space in new and authentically rev-
olutionary ways.”33 By taking over and transforming the square, the
movement created a space for representation—representations that were
then picked up by the media and broadcast around the world. Without
capturing the space of the square (and, indeed, without being incredibly
savvy in timing the protest), the movement simply would not have been
seen—at least not at the scale, and with the impact, that it was.
Spaces such as Tiananmen Square (or the central square in Leipzig)
enable opposition to be extended to wider scales, to radiate out into the
wider polity. This is no less true of People’s Park, even if the events there
may not have had the immediate world-historical importance of the
events in Leipzig and Beijing. After space is taken—whether that space
is a contested city lot, as in Berkeley, or the most important public space
in China—oppositional representations expand beyond the confines of
the local struggle, in part because they are broadcast (D’Arcus 2001).
Without the occupation of the space, without taking it, however, the
kinds of protests that came to a climax in Tiananmen, Leipzig, Seattle,

or People’s Park would have remained invisible. The occupation of
space is a necessary ingredient of protest, a fact that the forces of the
state, capital, or other powers know only too well.
For this reason, reliance on the media as the entrée into the public
sphere is dangerous (Fraser 1990). Media in the “bourgeois public
sphere” (as it has been described by Habermas) “are privately owned
and operated for profit. Consequently, subordinated social groups lack
equal access to the material means of equal participation” (Fraser 1990,
64–65). To overcome the problem of access, “subaltern counter publics”
create a “parallel discursive arena where members of subordinate
groups invent and circulate counterdiscourses, which in turn permit
them to formulate oppositional interpretations of their identities, inter-
ests and needs” (Fraser 1990, 67). In these arenas and spaces, counter-
publics can be seen by other factions of the public. Without these
spaces, “the public” is balkanized. Occupation of public space, then,
“militates in the long run against separatism because it assumes an ori-
entation that is publicist. Insofar as these arenas are publics they are by
definition not enclaves—which is not to say that they are not often in-
voluntarily enclaved” (Fraser 1990, 67, emphasis in original). This is
exactly the dynamic at work in the current round of anti-corporate
globalization protests, even if many of the condescending tribunes of
the global elite (such as Thomas Friedman or Paul Krugman at the New
York Times) fail to understand that.
While television and other electronic media (including the Inter-
net) have important roles to play in political movements—indeed, con-
temporary political movements are largely impossible without them
(which is why television and radio stations are often the first targets
whenever a revolutionary movement attempts to seize power)—there
has never been a revolution conducted solely in cyberspace. Revolu-
tions entail a taking to the streets and a taking of public space. They re-
quire the creation of disorder in places formerly marked by order and
control. Political movements must take space and create it anew as a
space in which the participants can be represented. While Lefebvre
(1991) may theorize the continual production and representation of
space and representational spaces, social movements understand that
they must create spaces for representation (see D’Arcus 2001). The
IWW knew this well (see Chapter 2), and so has every other important
social movement, whether progressive or reactionary. The fascist move-
ments (and governments) of 1930s Italy and Germany were adept at

both taking space and transforming it into a new representational arena.
While the taking and production of public space is a necessary compo-
nent of democracy, it is not only or even necessarily democratic. Public
space always entails risks; public space, like the disorder that must be
part of it, is an inherently dangerous thing.34 This is why, as we saw in
Chapter 2, the protests outside of abortion clinics—and the means by
which they are regulated—are so vexing.
Opponents of public, unmediated, and thoroughly politicized spaces,
and of the disorder that must be part of them, have responded by creat-
ing a new “enclosure” movement every bit as undemocratic as that
advocated by Matthew Arnold. Fearful of disorder and potential vio-
lence in public space, many developers, planners, and city officials (and
planners of economic summits) advocate taming space by circumscrib-
ing the activities—and people—permissible within it. Powerful pro-
cesses of exclusion are thus arrayed against the play of assertive, uncon-
trolled differences so necessary to democratic public spaces. As Lefebvre
(1991, 373) has argued, differences threaten social order and hence
must be absorbed by hegemonic powers:
Differences arise on the margins of the homogenized realm, either in the

form of resistances or in the form of externalities. . . . What is different is,
to begin with, what is excluded: the edges of the city, shanty towns, the
spaces of forbidden games, of guerrilla war, of war. Sooner or later, how-
ever, the existing center and the forces of homogenization must seek to ab-
sorb all such differences, and they will succeed if these retain a defensive
posture and no counterattack is mounted from their side. In the latter
event, centrality and normality will be tested to the limits of their power to
integrate, to recuperate, or to destroy whatever has transgressed.
Whether challenged from the left or the right, the established

power of the state and capital are threatened by the exercise of public
rights within public space. The conflicting desires for order and for
rights and representation—the need to go again to Hyde Park—struc-
tured the 1991 riots at People’s Park. Activists in Berkeley fought on be-
half of the expansion of social rights and opposition to outside control
over the park: the power of the state and corporate capitalism, they felt,
had to be opposed by (re)taking space. Only by taking and maintaining
control over People’s Park could oppositional political activity be repre-
sented and advanced. For activists such as David Nadle, the precedent
was clear. The struggle in People’s Park was another “Tiananmen

Square” in which park activists and homeless people together would
halt the expansion of the corporate state.
CONCLUSION: THE END OF PEOPLE’S

PARK AS A PUBLIC SPACE?
The university seemed just as clear in its use of precedents. According to

an unnamed university employee, Berkeley Chancellor Cheng-Lin Tien
“personally rejected” the possibility of further negotiations with activists
during the riots “on the grounds that he wanted violence and confronta-
tion to show the regents he is tough. He alluded to Bush’s actions in the
Persian Gulf; you don’t negotiate, you simply attack” (Kahn 1991c, 13).
Attack was necessary because the occupation of People’s Park by home-
less people and activists was illegal and illegitimate and because that oc-
cupation had excluded the majority from the park. Berkeley City Manager
Michael Brown promised that the city would do all that was necessary to
ensure implementation of a more orderly vision of public space in People’s
Park. Referring to the homeless residents and activists, Brown told the
New York Times (1991b, A8): “If they obstruct the majority opinion in a
democracy, the city, the university, the county, and the state will apply
whatever force is necessary to carry out the law.” Brown kept his word. In
the midst of the battle between protesters and police, Brown told the
press: “We have a serious situation out there. People think this is about
volleyball at the park but it is not. It’s about a group of people who think
they can use violence to force their will on a community, and we won’t ac-
cept that” (Lynch 1991a, A21). “We almost lost the city,” he added later
(Kahn 1991c, 13); the police and the governing institutions of the city, ac-
cording to Brown, were nearly incapable of quieting the disorderly poli-
tics of the street (Kahn 1991c).
The long-simmering and sometimes white-hot controversies over
People’s Park in Berkeley are paradigmatic of the struggles that define
the nature of “the public” and public space. Activists see places such as
the park as places for representation. By taking public space, social
movements represent themselves to larger audiences. Conversely, repre-
sentatives of mainstream institutions argue that public spaces must be
orderly and safe in order to function properly. These fundamentally op-
posing visions of public space clashed in the riots over People’s Park in
August 1991, and it is through such clashes that the actual nature of the
right to the city is determined.
Though its “public” status remains ambiguous to this day (given
UC’s legal title to the land), the political importance of the park as a
public space rests on its status as a taken space. By wresting control of
the park from the state, park activists, to one degree or another, and
over a period of more than 30 years, have held at bay those who wish to
impose on the land a very different conceptualization of public space.
But for those opposed to the park’s continuing as some sort of “untamed
land” (as the Contra Costa Times put it), the park’s long-standing use as
a refuge for homeless people suggested that it had become unmanage-
able, that large segments of the public felt threatened by the park’s resi-
dent population, and that the city and the university needed to exercise
more control over the park.
The riots that have occurred in and over the park—in 1969, in
1989, and again in 1991—require us to focus attention on exactly those
issues Matthew Arnold so long ago pointed to: appropriate uses of pub-
lic space, the definitions of legitimate publics, and the nature of demo-
cratic discourse and political action. Struggles over public space are
struggles over opposing ideologies, certainly; but they are also struggles
over the practice of democracy, a practice that is as often determined in
the streets, on the sidewalks, and in the parks as it is in the halls of the
legislature or in the courtroom. Oppositional movements, as well as
movements seeking to create a new kind of space and a new kind of
world, such as that which constructed People’s Park in the first place,
continually strive to assure the currency of more expansive visions of
public space. Still, as we will see even more clearly in the next chapter,
to the degree that the “disneyfication” of public space advances and
both marginalized people and political movements are shut out of pub-
lic space, the possibility of finding spaces that can be taken and made
into a space for representing the right to the city seems to become ever
more remote. That is why, as the activists that Naomi Klein (1999) pro-
files make clear, it is necessary to oppose the usurpation of public space
and its privatization at every turn.
CODA
More than ten years after the 1991 riots, the fate of People’s Park still re-
mains unclear. The volleyball courts were built but were rarely used.
Residents of the park occasionally sabotaged them by burying broken

glass in the sand. Eventually, under pressure from park users and the
city, the university removed them altogether (Figure 4.6). The Free
Stage and the Free Box are still there, despite frequent threats by the
university and sometimes the city to remove them, and the basketball
court is well used. The toilet facilities, which also house an equipment
shed that has doubled as a police substation, were quickly covered with
murals and graffiti (Figures 4.7 and 4.8). Numerous homeless people
still sleep in the park, mostly at the east end under the trees. The west
end contains several community garden allotments. The big grassy field
is still there, and during the day groups of homeless people, mostly
men, lounge about. Food Not Bombs provides regular meals (a practice
opposed by many merchants and some of the neighborhood associa-
tions in the city).
Showing its typical bad sense of timing, in April 1999, as the 30th
anniversary of the 1969 riots approached, the UC administration, in the
person of Berkeley Chancellor Robert Berdahl, reiterated once again its
desire to build student housing on the site of People’s Park, declaring
the park to be “underutilized and unsafe” (Burress 1999; Wong 1999).
The president of the Berkeley Council of Neighborhood Associations
supported Berdahl, saying that “the days of People’s Park’s historical sig-
nificance are long gone” (Wong 1999, A22). Even so, she averred, the
university should set aside a little space to commemorate what it once
was (Burress 1999). Students, however, did not support the building of
housing on the site. A year later, in a nonbinding resolution students
voted 54% in favor of keeping the park as it is and not building dormi-
tories (Lee 2000, A13). The vote came in the wake of the announce-
ment of a new university long-range plan that held as one of its options
the building of an “urban village” on the People’s Park site.
When the fiscal year ended on June 30, 2000, the university sent a
letter to the city announcing that it would no longer pay the nearly
$200,000 a year in maintenance costs for the park as it had for the pre-
ceding 10 years under the 1991 agreement. The university would no
longer clean and maintain the toilets or support the recreation programs
the city developed for the park (Holtz 2000a). The university asserted
that it could no longer afford the upkeep costs, but some city officials,
such as one of the parks and Recreation commissioners, felt that the
withdrawal of funds had more to do with the city government’s failure
to be “tough enough on the poor” and homeless (quoted in Holtz
2000a, A15). In response to the university’s decision and other con-
FIGURE 4.6. Part of the ongoing protests at the volleyball courts, 1994. The
courts were eventually removed, but the basketball courts across the park have been
retained. Photograph by Nora Mitchell; used by permission.
cerns, a number of park activists and supporters revived a plan to raise

money to purchase the park and establish it as a land trust that would
be administered by the city. Other activists countered that the university
should continue its maintenance agreement while leaving the park as it
is. As one of them put it: “I think it has been bought and paid for in
blood” (quoted in Holtz 2000b, A18).
Whatever the fate of the park, it remains, for now at least, an in-
tensely conflicted spot, and it is this very history of conflict that is im-
portant to how we understand—and act on—the relationship between
public space and democracy, and how we determine just who counts as
part of “the public.” For, despite 30 years of confrontation, and despite
Berkeley’s ongoing gentrification and the continued development of the
FIGURE 4.7. The front of the restroom and utility building constructed in 1991.
It was almost instantly covered with murals and graffiti, much of it depicting the
various riots at People’s Park and ongoing concerns about police brutality in the
city. Photograph by author.
FIGURE 4.8. The rear of the restroom and utility building. The area behind the
rolling door was used for sports equipment storage and checkout and as an occa-
sional police substation. Photograph by author.
Berkeley campus and the surrounding neighborhoods, People’s Park re-

mains, troubled as it is, a refuge for homeless people, people who have
no other place just to be. As the next chapter will show, such places are
increasingly rare, and their destruction has clear implications for just
who has the right to the city.
NOTES
1. The defense of the stage and the Free Box are in fact quite important and
indicate why People’s Park is such an important space in the current his-
tory of American public space. The stage was built explicitly as a space for
free speech and political action, and it has remained a key center for rallies
and organizing efforts in the city. In this sense, People’s Park was con-
structed as a public space for politics, as a place where political involve-
ment and debate were encouraged—and in a way that stood at odds with
(but not disconnected from) the more orderly politics of the traditional
parties, elections, council meetings, and the like. The “Free Box” is a
clothes (and other materials) exchange. People leave what they no longer
need for others to pick and choose as they please. The Free Box is a fully
decommodified system of exchange of use values (to put it in technical
terms), and as such represents the possibility of public space as a noncom-
modified space in the city where people can meet their needs in a manner
not entirely predicated on capitalist relations of property, exploitation, and
exchange value. Whatever the differences between the politics of protest
and the politics of homelessness in the American city, they are united in
their need for a public space either relatively free or liberated from the con-
trolling power of the state and property. This chapter will begin to show
just how complex the “relatively” in the previous sentence is.
2. In 1996 Nadle was murdered in his nightclub.
3. With these comments, Nadle makes it clear how the struggle for People’s
Park foreshadowed some of the key issues that were to become radical
battlegrounds later in the 1990s and into the next decade, including the
corporate dominance of public space (see Klein 1999). Organizations such
as Reclaim the Streets, Critical Mass, and the coalitions that have disrupted
world trade meetings have expressed a deep affinity for the Berkeley activ-
ists of the 1980s.
4. My evidence here comes from my brother, David Mitchell, who was one of
those neighboring students and a supporter of park redevelopment. His
constant questioning of my positions in my research on People’s Park has
been invaluable to its development.
5. The best reporting on the riots is in the weekly East Bay Express (Auchard
1991, 1ff; Kahn 1991c, 1ff; Rivlin 1991b, 1ff), which details incidents of
police abuse and the actions of protesters.
6. I recognize that there are potentially many more ways of seeing public
space (some of which will be explored in later chapters) and that many
people will hold a middle (and perhaps wavering) ground between them.
But these, as we will see, are the predominant ways of seeing public space
across a variety of (largely Western) societies and historical periods. I sug-
gest in what follows that in examining these visions we can begin to see
how public space is produced through practices guided or structured
through their dialectical interaction.
7. Lefebvre (1991, 39) claims that representational space is “passively experi-
enced” by its users. This thesis will not withstand close scrutiny. People ac-
tively transform their spaces, appropriating them (or not) strategically.
8. Some critics of my position here (cf. Heyman 2001) argue that taking space
is fundamentally different from producing it. Heyman’s argument is that any
public space must be a new kind of space that represents new social rela-
tions, not a space transformed. At the level of a philosophical thesis,
Heyman is perhaps correct. In the physical world, however, it is hard to see
how physical space can be conjured up out of nothingness: space already
exists, and indeed must exist, in order for it to be socially produced as pub-
lic space.
9. That this is the case is now very well understood by planners of major in-
ternational summits (such as WTO meetings). It is now standard practice
to do all that can be done to render protests against international ministe-
rial meetings invisible by locating the meetings behind miles-long fences
or in the heavily guarded compounds of totalitarian states (such as Qatar).
This is the face of democracy under globalization.
10. This is not to say that public space is sufficient—only that it is necessary.
Sexual minorities, for example, often have very real needs for private
space—space free from the surveilling eyes of the state or dominant soci-
ety—in order to both fulfill desires and to fashion identities. Yet, it is also
the case that such minorities have become political actors to the degree
they have forced themselves into public space, as with ACT-UP, Queer Na-
tion, or through the development of spatially concentrated neighborhoods
where gay men and women and other sexual dissidents are regularly seen
in public on the streets. For recent discussions of these issues see Brown
(2000) and Hubbard (2001).
11. As we will see in the next two chapters, understanding the rights of the
homeless to be seen in cities in this manner sheds important light on some
of the consequences (if not always the intent) of anti-homeless laws. Anti-
homeless laws have the effect not only of regulating homeless people’s
behavior but also of delegitimizing them as bonafide members of the pub-
lic.
12. I will save a fuller discussion of what constitutes “danger” for Chapter 5, in
which we will examine the ideal of what Sennett (1994) calls an urban en-
vironment free from “resistance.”
13. Young (1990, 119) goes on to argue that, in order to promote a democratic
politics of inclusion, “participatory democracy must promote the ideal of a
heterogenous public”—exactly that, as I will later argue, which so much

current public space law and planning does not promote.
14. At least that was how the ideal of separate spheres posited the relationship
between them. The degree to which this ideal was matched in practice can
be gauged quite precisely by reading the 1848 Declaration of Sentiments
that launched the feminist movement in the United States—a document
that spells out how women were excluded from the polity (and turned into
privately held property) while at the same time showing how some women
were able to break the bounds of that ownership and exclusion.
15. Even if their labor, and often their bodies, have been quite welcome.
Women in public as other than decorations on the arms of men (or
working-class cleaners, sellers, waitresses, etc.), as E. Wilson (1991) has
shown, have historically been viewed as suspicious, as prostitutes, or as
deranged and uncontrollable. Alternatively, stylized representations of
women in public—the bare-breasted heroine on the barricades—have
played an ideologically important role in struggles over public space.
16. The argument here is similar to Benedict Anderson’s (1991) famous argu-
ment about the nation being an “imagined community,” since the commu-
nity in total can never be experienced or even known.
17. Numerous geographers have attempted to advance remarkably unmaterial
definitions of public space, but they have yet to show how such definitions
differ in any substantial way from the rather ethereal sense that attaches to
the public sphere. As importantly, losing focus of the materiality of public
space leads to a rather remarkable inability to engage in clear empirical
analysis of the spatiality of political events. See Kilian (1998) and Ruddick
(1996).
18. Howell (1993) notes that the difference between Arendt and Habermas is
that, for the former, public space has not lost its “geographical signifi-
cance.”
19. For a fuller analysis of the relationship between public and private activi-
ties and public and private spaces, see Staeheli (1996).
20. The ideological and definitional exclusion of homeless people from the
polity has a long history in Anglo-American jurisprudence (see Ribton-
Turner 1887; Commonwealth of Pennsylvania 1890). It finds its practical
expression in such mundane things as laws that require a fixed address in
order to register to vote.
21. In such discourse “the homeless” are presented as a homogeneous mass,
with few if any characteristics to distinguish them—in essence denying
homeless people’s individuality and humanity. This discourse operates si-
multaneously with another that seeks to particularize the homeless, show-
ing that this one is an alcoholic, that one a drug addict, still another is
mentally ill, and a fourth is all three. The strategy here is to so particularize
the homeless as to deny what is common among them: namely, that they
are without permanent shelter of their own. I take on this latter discourse
(to some extent) in the next two chapters; but throughout this volume I
also engage in my own essentialization of “the homeless.” This is a purely
political choice on my part: it is a means to focus on political processes and

struggles that shape and define the homeless as a class with a set of com-
mon interests rather than as pathological individuals needing treatment or
other forms of paternalistic intervention.
22. Goss (1996, 1999) has softened his stance a bit, focusing now as much on
the ways that users of highly designed spaces transform those spaces while
they are using them often into things their designers did not plan. Lees
(1998, 2001) argues that some new urban public spaces—such as the Van-
couver Public Library—are in fact fairly political places despite, or even
because of, their security apparatus. And studies of consumers using malls
(Miller, Jackson, Thrift, Holbrook, & Rowlands 1998) argue that consum-
ers engage in tactical appropriation of meanings while they shop. All of
these studies argue that meanings of particular landscapes are never fixed
once and for all, which is true, but they tend to gloss over the degree to
which different actors possess different levels of power to determine both
uses and meanings of public space, a point very clearly made in the intro-
duction to Gold and Revill (2000).
23. This seems especially apparent in new civic buildings, such as Vancouver’s
new library, according to the evidence, if not the analysis, presented by
Lees (2001).
24. This point is also central to Debord’s (1994 [1967]) theory of spectacle.
Debord’s argument undergirds much of what follows.
25. Compare Wallace (1996), who argues that the presentation of spectacle in
place of history and society fits well with prevailing corporate conceptions
of progress and “democracy.”
26. So pervasive has this suburban sensibility become that architects and de-
signers seem to find it nearly impossible to transcend even when facing the
prospect of designing a new urban park such as Toronto’s Downsview
(Mitchell and Van Deusen 2002).
27. Cindi Katz’s (1998) examination of Central Park in this regard is especially
important.
28. This was another trend amplified in the wake of the September 11, 2001,
terrorist attacks. In the massive reporting on the event, not a little ink and
airtime was devoted to what was being said—what political arguments
were being made, what rumors were flying, etc.—on the Internet.
29. MMG’s analysis and the MTV campaign are two examples of the massive
outpouring of faux populism issuing from corporate boardrooms, ad agen-
cies, and cultural studies centers that Thomas Frank (2001) so thoroughly
demolishes in One Market, Under God.
30. See Rosati (2002) for an excellent analysis of these practices.
31. Sennett (1992) provides an excellent analysis of the dangers of this sort of
solipsistic empowerment.
32. It is also, as we saw (on pp. 71–72), hemmed in by some quite bad consti-
tutional precedent that makes it a particularly anemic “public forum.”
33. Hershkovitz is arguing, rightly, against de Certeau’s (1984, xix) notion that
popular movements are necessarily “placeless”—that hegemonic powers
have monopoly power over space and place, and hence resistance can oc-
cur only in the interstices—that is, it can only be “placeless.”
34. In the next chapter I introduce the idea of a “brutal public sphere.” The
dangers of public space should not be equated with this brutal public
sphere. “Public space,” in this case, refers to an environment of risk, the
risk necessary to any democratic politics. But “public sphere” refers to sys-
tematic oppression and exploitation, either organized by the state or by
private interests.
5
The Annihilation
of Space by Law
Anti-Homeless Laws and the Shrinking
Landscape of Rights
No one is free to perform an action unless there is somewhere

he is free to perform it. . . . One of the function of property
rules, particularly as far as land is concerned, is to provide a
basis for determining who is allowed to be where.
—JEREMY WALDRON (1991, 226)
When some members of the Berkeley City Council feared that the uni-
versity had ended its decade of support for People’s Park because the
City had not been “tough enough” on the homeless and other poor peo-
ple, one must wonder just what constitutes “toughness” these days. For
Berkeley, though often experimenting with “liberal” policies toward the
homeless (such as establishing a program in which pedestrians gave
vouchers for services to panhandlers in lieu of money), has been one of
the leaders of a new legal assault on homeless people. This assault takes
the form of passing and implementing a suite of “quality of life” initia-
tives and laws that seek to highly regulate street behavior, when and
where (or if) people can sleep in public, and how people can and cannot
beg. In 1994, the Berkeley City Council and voters approved an anti-
panhandling law that prohibited “aggressive” panhandling, all begging
at night, panhandling people as they got in and out of their cars, and
begging inside a 10-foot “bubble” around every automatic teller ma-
161
chine. In addition, the law made it illegal to sit on the sidewalk. Berke-
ley’s regulations were “among the strictest in the country” (San Fran-
cisco Chronicle 1994a). When the Berkeley regulations were held up in
the courts for several years (Herscher 1995), a new, slightly, revised ver-
sion of the laws was passed by the city council in 1998.
The Berkeley ordinance is part of a species of law and policy that has
developed over the past decade in response to the permanent crisis of
homelessness. A few examples suffice to give a sense of what is at work:
• Over 11 months in 1998, San Francisco issued more than 16,000

“quality of life” violations, mostly to homeless people (NLCHP
1999). As part of its “Matrix” program, the city frequently
“sweeps” city streets, squares, and parks of homeless people, and
enforces a “zero tolerance” policy for violations of laws against
camping in public, loitering, urinating and defecating in public,
and drinking in public places (MacDonald 1995).
• In dozens of cities around the country, including Santa Cruz,
Berkeley, Phoenix, St. Petersburg, and San Diego, it is illegal to
sleep in public places. Similar laws are on the books in Seattle
where they were used to arrest protesters at the December 1999
WTO meeting (Falit-Baiamonte 2000).1
• In Atlanta and Jacksonville, Florida, it is a crime to cut across or
loiter in a parking lot (in 1 month alone in 1993 in Atlanta, 226
people were arrested for “begging, criminal trespass, being disor-
derly while under the influence of alcohol, blocking a public way
or loitering in a parking lot” [Atlanta Journal and Constitution
1993]).
• In New York it is illegal to sleep in or near subways and to wash
car windows on the city streets (Howland, 1994); most of the
small squares in Manhattan have now been leased to Business
Improvement Districts, whose private security forces vigorously
enforce rules against dozing on benches or at tables (cf. Katz
2001).
• In Eugene, Oregon, and Memphis, Tennessee, beggars are re-
quired to obtain licenses, a process that requires being finger-
printed and photographed. Beggars are required to carry their
photo-licenses at all times (San Francisco Chronicle 1994b).
• As in Berkeley, in Cincinnati it is illegal to beg from anyone get-
ting into or out of a car, near automatic teller machines, after
8 P.M., or within 6 feet of any storefront. It is also illegal to sit or
The Annihilation of Space by Law 163
lie on sidewalks between 7 A.M. and 9 P.M. (Cincinnati Enquirer

2
1995a, 1995c). More than a third of all municipalities in the
United States now have such laws (Denver Post 1999a). Denver,
Colorado, enacted its law, in the words of the president of its
Downtown Partnership, because “Panhandling makes [visitors]
cringe, especially if they don’t know where they are” (Denver Post
2000a).
• Not content with these sorts of restrictions on the place and
manner of begging, Baltimore is seeking to ban panhandling alto-
gether after dark. Advocates of the new law there say that night-
time panhandlers disrupt people who want “to go to Little Italy
at night to dine or to Fells Point to barhop” (Baltimore Sun
2001).
The intent is clear: to control behavior and space such that homeless
people cannot do what they must do in order to survive without break-
ing laws. Survival itself is criminalized. But, as legal scholar David
Smith (1994a, 495) argues in an article on the criminalization of home-
lessness, the “supposed public interest that criminalization is purported
to serve”—such as the prevention of crime or the maintenance of or-
der—“is dubious at best,” since criminalizing necessary behaviors does
nothing to address such root causes as the lack of affordable, safe hous-
ing in most cities, structural unemployment (or, as I would put it, the
need to maintain a reserve army of the unemployed), and the pairing of
poverty and despair that turns drug and alcohol addiction and mental
illness into an issue of housing for a significant portion of the popula-
tion. If Smith is correct, then two questions arise. First, just why have
such anti-homeless laws become so prevalent in the past decade (and
why are they continually touted as the key to “saving” America’s cities)?
Second, what do such laws portend for urban public space and the prac-
tices of democracy and citizenship that such spaces do and do not
allow? This chapter seeks to answer those questions. In the process of
doing so, it shows that the “cry and demand” for the right to the city
must become ever more insistent.
THE ANNIHILATING ECONOMY
For Neil Smith (1996), the rise of anti-homeless laws, coupled with a
range of other punitive laws including so-called welfare reform, an-
nounces a new urban regime. This regime, Smith argues, is based on

“revanchism,” a right-wing movement of “revenge” for the presumed
“excesses” of the liberal 1960s that seeks to revive what it sees as the
“traditional values” of America.3 But, as Smith is quick to point out, this
revanchism is not solely a right-wing movement. Indeed, some of its
most infamous moments, such as the closing of Tompkins Square Park,
were the result of liberal urban administrations (N. Smith 1996, 220).
Indeed, what is at work is the implementation, at the urban scale, of a
regulatory regime—and its ideological justification—appropriate to the
globalizing neoliberal political economy that developed out of the global
recessions of the 1970s, the debt crisis of the early 1980s, the economic
crises of the late 1980s (and 1990s, for Asia), and the implosion of the
Soviet Union and its satellites. Such liberal mayors as Paul Schell in Se-
attle, David Dinkins in New York, or Willie Brown in San Francisco
have been no less insistent on the need to reregulate the poor and
homeless than their conservative and even reactionary brethren, such as
Dinkins’s successor in New York, Rudy Giuliani, Brown’s predecessor in
San Francisco, Frank Jordan, or Schell’s once-hopeful successor in Seat-
tle, City Attorney Mark Sidran (whom we will get to know a little bit
better in a moment). “Revanchism” describes an urban regime that cuts
across mainstream party lines and has even taken on the cast of com-
mon sense. It is a powerful movement reacting to what seems to be a
powerful set of trends shaping urban areas, trends that are organized
under the capacious banner of “globalization.”
On the one hand, globalization refers to the process of integration
of economies across international boundaries. On the other hand, it re-
fers to the sense that, not just in economic terms, but also in social, po-
litical, and cultural terms, the world is ever more connected—that time
and space are constantly being compressed (Harvey 1989, 1990; Massey
1995) and places and borders are of decreasing importance. In this re-
spect, globalization is, more than anything, a remarkably powerful ide-
ology in and of itself. Indeed, the popular media remain enthralled by
the prospect of “globalization” (despite the growing global protest
movement against the form it is taking, and despite the “blowback” that
the September 11, 2001, terrorist attacks in part represented), breath-
lessly recounting the wonders it is leading to: instant communication,
Big Macs available in every corner of the world, the sublime joy of being
able to eat sushi in the middle of a Nebraska winter. Watchers of the
news and readers of the papers are led to believe, simply, that space has
ceased to exist (despite occasional troublesome hiccups, such as a

dozen undocumented migrants dying in the Arizona desert as they seek
to elude the border patrol).
For the class the ideology of globalization serves, “globalization” is
little more than an accurate moniker for the new experience of everyday
life: the managerial elite who play and govern instantaneous markets in
currency, futures, stocks, and even inventories; the Western and west-
ernized middle and upper classes that can afford both the equipment
and the time to instantly connect to the far corners of the globe through
the World Wide Web; the wealthy students who jet across continents
for long weekends with relatives or friends or skiing holidays in the
fresh powder of the Rockies or Alps. For such people, space simply does
not matter (at least once they have recovered from jet lag). Or better, it
simply is not matter: it is rather some ethereal medium made increas-
ingly irrelevant by networks of wires, fiber-optic cables, superhighways
(asphalt or informational), jetliners, satellites, and, of course, money. A
large number of people and, more importantly, capital itself have been
unfettered (and perhaps just a bit disoriented) by time–space compres-
sion. There seems to have been, to use one of David Harvey’s favorite in-
sights from Marx, a further, and quite incredible, “annihilation of space
by time.” Even those who adopt a critical stance toward globalization
(such as Harvey himself) but nonetheless see the “annihilation of space
by time” as the overriding economic force of our era still tend to see
capital as a global, translocal force able to behave, in Smith’s (1990) im-
agery, like a plague of locusts circling the globe, touching down hither
and yon, devouring whole places as it seeks ever better comparative ad-
vantage.
Yet, as a number of geographers have shown, such a globalization is
in fact not predicated on the “annihilation of space by time,” no matter
how evocative that metaphor may be, but rather on the constant pro-
duction and reproduction of certain kinds of spaces (Harvey 1982;
Massey 1995; Storper and Walker 1989; N. Smith 1990, 1996; Walker
1996). For capital to be free, it must also be fixed in place. This is the
central geographical contradiction of capitalism, and the one that
makes the ideology of globalization, together with neoliberal, revanchist
social regulation, so important. It is a contradiction that is rooted in
capitalism’s tendency toward a continually declining rate of profit.
“Going global”—reconfiguring the spaces and scales of accumulation—
is one means of staving off that decline, at least for some capitals, some
of the time. Not just at the global scale, but in all the locations that capi-
tal does business, perpetual attempts to stave of crisis by speeding up
the circulation of capital leads to a constant reconfiguration of produc-
tive relations (and productive spaces). Together, these trends—toward
rapid turnover and toward the concomitant appearance of globaliza-
tion—create a great deal of instability for those whose investments lie in
fixed capital, especially the fixed capital of the built environment.4
While capital simply cannot exist without some sort of fixity—in ma-
chines and factories, in roads and parks, in homes and stores—the very
unevenness of capital mobility lends to places an increasing degree of
uncertainty. Investment in property can be rapidly devalued, and local
investors, property owners, and tax collectors can be left holding the
bag. Or not. Together or individually, they can seek to stabilize their re-
lationship with peripatetic capital by protecting long-term investments
(and attracting new investment) in fixed capital—and as a home-base
for globe-trotting capital—through tax, labor, environmental, and regu-
latory inducements. But establishing incentives and transforming regu-
latory environments can lead to a frenetic place auction, as new munici-
palities and states compete with on another both to attract new
investment and to keep local capital “home.”
This is precisely where the ideology of globalization is so powerful:
by effectively masking the degree to which capital must be located, the
ideology of globalization allows local officials, along with local business
and property owners, to argue that they have no choice but to prostrate
themselves before the god Capital, offering not just tax and regulatory
inducements but also extravagant convention centers, downtown tour-
ist amusements, up-market, gentrified restaurant and bar districts, new
baseball and football stadiums, and even occasional investment in such
amenities as museums, theaters, and concert halls (Molotch 1976; Cox
and Mair 1988; Zukin 1995).5 Image becomes everything. When capital
is seen to have no need for any particular place, then cities do what they
can to make themselves so attractive that capital—in the form of new
businesses, more tourists, or a greater percentage of suburban spend-
ing—will want to locate there. If there has been a collapse of space, then
there has also simultaneously been a new and important reinvestment
in place—a reinvestment both of fixed (and often collective) capital and
of imagery. For Scott Kirsch (1995, 529) a world thus structured leads
to the obvious question “What happens to space after its collapse; how
do these spatiotemporal transformations impact our everyday lives . . . ?”
For many cities in the United States, the answer to this question,
quite perversely, has led to a further “annihilation of space”—this time
not at the scale of the globe and driven by technological change, but
now quite locally and driven by changes in law. New laws governing the
use of space are not just a rhetoric or discourse of neoliberal revanch-
ism, but its actual practice, a practice that is a key front upon which the
battle for the right to the city must be fought. In city after city con-
cerned with “quality of life”—with, in other words, making urban areas
attractive to both footloose capital and to the footloose middle and up-
per classes—politicians and managers of the new economy have turned
to what could be called “the annihilation of space by law”—the space to
live, sit, and take care of oneself if there is no house or home in which
to do so. For this is what the new legal regime in American cities—the
regime that is represented in the sorts of laws described above—is out-
lawing: just those behaviors that poor people, and the homeless in par-
ticular, must do in the public spaces of the city.6 And this regime does it
by legally (if in some ways figuratively) annihilating the only spaces the
homeless have left. The anti-homeless laws being passed in city after
city in the United States work in a pernicious way: by redefining what is
acceptable behavior in public space, by in effect annihilating the spaces
in which homeless people must live, these laws seek simply to annihi-
late homeless people themselves, all in the name of re-creating the city
as a playground for a seemingly global capital that is ever forced to en-
gage in its own annihilation of space.
THE ANNIHILATION OF PEOPLE BY LAW

Sleepless in Seattle
The current restrictions on homeless people’s behavior in public space
are clearly an effort to regulate space so as to eliminate homeless people,
not homelessness. Berkeley is quite advanced in this effort, though not
nearly so much as San Francisco across the bay or Seattle to the north.
The case of Seattle, in fact, is indicative of the whole tenor of the war
against homeless people that cities are waging in the name of global
competitiveness. It is also indicative of the tortured path that ideology
travels as it is transmogrified from a form of urban liberalism into a
form of urban neoliberalism.
In an article that recounted the Disney Corporation’s failed at-
tempts at urban planning in Seattle during the 1980s and the subse-
quent development by the city of a more inclusive planning process—
one that included homeless people and attempted to incorporate their
needs and desires—Stacy Warren (1994) quotes the remarks of a home-
less man included in a 1989 survey: “thank you for having me and other
individuals to be part of the [Seattle] Center–warmth, etc. as a homeless
person.” On the basis of this and other evidence, Warren (1994, 110)
concludes: “That a homeless person, as perhaps the strongest symbol of
disenfranchisement in the city, should form a constituent part of the
planning process for the new Seattle Center speaks to the power of true
citizenship embedded in hegemonic processes.”
Such benevolence toward homeless people in Seattle had its limits,
even in the 1980s. In 1986 Seattle passed an “aggressive panhandling
law” (Los Angeles Times 1987; New York Times 1987; Blau 1992), one of
the earliest in the country. The law was struck down as unconstitutional
(since is was seen as outlawing a form of protected speech). By the early
1990s, unconvinced of the effectiveness of laws merely regulating ag-
gressive panhandling, Seattle’s crusading City Attorney Mark Sidran
sponsored a suite of new laws that outlawed everything from urinating
in public to sitting on sidewalks and sleeping in public places. The new
laws further gave the police the right to close to the public any alley it
felt constituted a menace to public safety.7 Sidran argued that such laws
(that is laws that outlawed conduct that homeless people had to engage
in to survive) were necessary to assure that Seattle did not join the cities
of California as “formerly great places to live.” The danger was palpable
if still subtle:
Obviously, the serious crimes of violence, the gangs and the drug traffick-
ing can tear a community apart, but we must not underestimate the dam-
age that can be done by a slower, less-dramatic but nonetheless dangerous
unraveling of the social order. Even for hardy urban dwellers, there comes
a point where the usually tolerable “minor” misbehaviors—the graffiti, the
litter and the stench of urine in doorways, the public drinking, the aggres-
sive panhandling, the lying down on the sidewalks—cumulatively become
intolerable. Collectively and in the context of more serious crime, they
create a psychology of fear that can and has killed other formerly great cit-
ies because people do not want to shop, work, play or live in such envi-
ronments. (Sidran 1993, B5)
The logic is fascinating. It is not so much that “minor misbehaviors” are

in themselves a problem. Rather, the context within which these behav-
iors occur (“more serious crime”) makes them a problem. Sidran is ex-
pressing a variation on the “broken windows” thesis of James Q. Wilson
and George F. Kelling (1982; Kelling and Coles 1996), which we will
explore in more detail in the next chapter. For now it is enough to note
that the answer to the problems associated with “minor misbehaviors”
and their context of “serious crime” is neither to focus on the context
nor to try to understand the reasons why people might need to lie on
sidewalks or urinate on doorsteps. Instead, “[t]o address misbehavior
on our streets, we need to strengthen our laws. We need to make it a
crime to repeatedly drink or urinate in public, because some people ig-
nore the current law with impunity” (Sidran 1993). Sidran recognizes
that “law enforcement alone is not the answer” and thus supports ex-
panded services for the homeless. “At the same time, however, more
services alone are also not the answer. Some people make bad choices”—
such as the choice to urinate in public or to sit on sidewalks. “We also
need to address those lying down day after day in front of some of our
shops. This behavior threatens public safety. The elderly, infirm and vi-
sion impaired should not have to navigate around people lying prone on
frequently congested sidewalks.”
There is another, perhaps more important, danger posed by those
sitting and lying on streets: “many people see those sitting or lying on
the sidewalk and—either because they expect to be solicited or other-
wise feel apprehensive—avoid the area. This deters them from shopping
at adjacent businesses, contributing to the failure of some and damaging
others, costing Seattle jobs and essential tax revenue” (Sidran 1993).
Sidran argues in the end that homeless people in the streets and parks
“threaten public safety in a less-direct but perhaps more serious way. A
critical factor in maintaining safe streets is keeping them vibrant and ac-
tive in order to attract people and create a sense of security and confi-
dence.” And security is precisely the issue:
If you were to write Seattle’s story today, you might borrow Dickens’s
memorable opening of “A Tale of Two Cities,” “It was the best of times, it
was the worst of times.” From Fortune Magazine’s No. 1 place to do busi-
ness to the capital of “grunge,” from high-tech productivity perched on
the Pacific Rim to espresso barristas on the corners, it is the best of times
8
in Seattle. We’re even a good place to be sleepless.
Especially if you are homeless, it seems, since under Sidran’s proposal

there would simply be no place for you to sleep. The regulation of pub-
lic space takes on a different “caste,” however, depending on who you

are. Under Sidran’s proposals (eventually passed by the Seattle City
Council), exceptions to the “no sitting” provisions were made for “peo-
ple using sidewalks for medical emergencies, rallies, parades, waiting
for buses or sitting at cafes or espresso carts” (Seattle Times 1993a). The
target of these laws is obvious.9 And their effect was both predictable—
when enforcement was emphasized downtown, many homeless people
moved to outlying business districts, prompting numerous complaints
from merchants in those areas (Balter 1994)—and important to under-
stand. To the degree that laws can annihilate spaces for the homeless
(the sidewalk, the park, the alley), they can annihilate the homeless
themselves. When such anti-homeless laws have come to cover all pub-
lic space, which is certainly the hope of residents and merchants in out-
lying areas when downtown ordinances push homeless people in their
direction, then presumably the homeless will just vanish.
The Annihilation of People

This is the crux of the matter. Arguing from first principles in a brilliant
essay, the legal scholar Jeremy Waldron shows that the condition of be-
ing homeless in capitalist societies is most simply the condition of hav-
ing no place to call one’s own. “One way of describing the plight of the
homeless individual might be to say that there is no place governed by a
private property rule where he is allowed to be” (Waldron 1991, 299).
Homeless people can only be on private property—in someone’s house,
in a restaurant’s toilet—by the express permission of the owner of that
property. While that is also true for the rest of us, the rest of us nonethe-
less have at least one place in which we are (largely) sovereign. We do
not need to ask permission to use the toilet or shower or to sleep in a
bed. Conversely, the only place homeless people may have even the pos-
sibility of sovereignty in their own actions in on common or public
property.10 As Waldron explains, in a “libertarian paradise” where all
property is privately held, a homeless person simply could not be. “Our
society saves the homeless from this catastrophe only by virtue of the
fact that some of its territory is held as collective property and made
available for common use. The homeless are allowed to be—provided
they are on the streets, in the parks, or under bridges” (Waldron 1991,
300).
Yet, as city after city passes laws specifically outlawing common be-
haviors (urinating, defecating, standing around, sitting, sleeping) on

public property:
What is emerging—and it is not just a matter of fantasy—is a state of af-

fairs in which a million or more citizens have no place to perform elemen-
tary human activities like urinating, washing, sleeping, cooking, eating,
and standing around. Legislators voted for by people who own private
places in which they can do these things are increasingly deciding to make
public places available only for activities other than these primal human
tasks. The streets and subways, they say, are for commuting from home to
office. They are not for sleeping; sleeping is what one does at home. The
parks are for recreations like walking and informal ball-games, things for
which one’s own yard is a little too confined. Parks are not for cooking or
urinating; again these are things one does at home. Since the public and
private are complementary, the activities performed in public are the com-
plement of those performed in private. This complementarity works fine
for those who have the benefit for both sorts of places. However it is disas-
trous for those who must live their whole lives on common land. If I am
right about this, it is one of the most callous and tyrannical exercises of
power in modern times by a (comparatively) rich and complacent major-
ity against a minority of their less fortunate fellow human beings. (Wald-
ron 1991, 301–302)11
In other words, we are creating a world in which a whole class of people

cannot be—simply because they have no place to be.
As troubling as it may be to contemplate the necessity of creating
“safe havens” for homeless people in cities (and we will see just how
troubling that is in the next chapter),12 it is even more troubling to con-
template a world without them. The sorts of actions we are outlawing—
sitting on sidewalks, sleeping in parks, loitering on benches, asking for
favors, peeing—are not themselves subject to total societal sanction. In-
deed, they are all actions we regularly and even necessarily engage in.
What is at issue is where these actions are done. For most of us, a prohi-
bition against asking for a donation on a street corner is of no concern;
we can sit in our studies and compose begging letters on behalf of the
PTA or even ourselves. So too do rules against defecating in public seem
entirely reasonable. When one of us—the housed—finds himself or her-
self unexpectedly in the grips of diarrhea, for example, the question is
one of timing—not at all of having no place to take care of our needs.
Not so for the homeless, of course: the homeless person with diarrhea is
entirely at the mercy of property owners or must find a place on public
property on which to relieve him- or herself. So too with the everyday
need to defecate. And similarly, the pleasure (for me) of dozing in the
sun on the grass of a public park is something I can, quite literally, live
without, but only because I have a place where I can sleep whenever I
choose. The issue is not murder or assault, in which there are (near) to-
tal societal bans. Rather, the issue, in the most fundamental sense, is an
issue of geography, a geography in which a local prohibition (against
sleeping in public, for example) becomes a total prohibition (for exam-
ple, on sleeping) for some people. That is why Jeremy Waldron (1991)
understands the promulgation of anti-homeless laws as fundamentally
an issue of freedom: such laws destroy whatever freedom homeless peo-
ple have, as people, not just to live under conditions at least partially of
their own choosing, but to live at all.13 And that is why what we under-
stand public space to be, and how we regulate it, is so essential to the
kind of society we make. The annihilation of space by law is unavoid-
ably (if still only potentially) the annihilation of people.
The degree to which anti-homeless legislation diminishes the
freedom or rights of homeless people is not, of course, an important
concern for those who promote anti-homeless laws. Rather, they see
themselves not as instigators of a pogrom but rather as saviors: sav-
iors of cities, saviors of all the “ordinary people” who would like to
use urban spaces but simply cannot when they are chockful of home-
less people lying on sidewalks, sleeping in parks, and panhandling
them every time they turn a corner. These are our latter-day “Little
Arnolds,” and theirs is not simply a good or just cause; it is a neces-
sary one. “The conditions on our streets are increasingly intolerable
and directly threaten the safety of all our citizens and the economic
viability of our downtown and neighborhood districts,” according to
Seattle’s Mark Sidran (Seattle Times 1993c). Or, as columnist Joni
Balter (1994) put it: “Seattle’s tough laws on panhandling, urinating
and drinking in public, and sitting and lying on the sidewalk are cut-
ting edge stuff. Anybody who doesn’t believe in taking tough steps to
make downtown more hospitable to shoppers and workers wins two
free one-way tickets to Detroit or any other dead urban center of their
choice.” The argument couldn’t be clearer. Urban decline is the result
of homelessness. Detroit is “dead” because people “make bad choices”
and panhandle on the streets, urinate in public, or sit on sidewalks,
thereby presumably scaring off not only shoppers, workers, and resi-
dents, but capital too. This is a monumentally ignorant view of urban
political economy (and, for that matter of racism in the United
States), but it is not at all an uncommon one. Without the elimination

of homeless people, Seattle will go the way of Detroit and Newark;
hence, the homeless must be eliminated.
THE PROBLEM OF REGULATION
While the mode of regulation of homeless people proposed by Seattle’s

Sidran and Berkeley’s City Council may be relatively new, the desire to
regulate the homeless out of existence is not. Indeed, what is at work in
American cities is a recriminalization of homelessness. The criminal-
ization of poverty and homelessness has a long history, of course. As-
pects of the Elizabethan poor laws (which, as Marx showed, were so
crucial to the rise of capitalism and the development of a reserve army
of labor) were transferred to America and helped shape how colonial
cities regulated the poor. During the depressions of the 1870s, 1890s,
and early 1900, and their associated “tramp scares” (Cresswell 2001),
American varieties of English poor law were revived. And, as Piven and
Cloward (1992) showed so well, welfare and other policies for “regulat-
ing the poor” have been an integral aspect of the American state’s 20th-
century desire to mediate the social pressures that arise from capital-
ism’s fluctuating booms and busts. But all this regulating of the poor
should not blind us to their absolute necessity to actually existing capi-
talism. In a striking passage, Marx (1987 [1867]) discusses the growth
of the very poor as a function of the accumulation of capital. But he also
points to the contradiction that this dual growth (of wealth and pov-
erty) leads to:
The greater the social wealth, the functioning of capital, the extent and en-
ergy of its growth, and, therefore, also the absolute mass of the proletariat
and the productiveness of its labour, the greater is the industrial reserve
army. The same causes which develop the expansive power of capital, de-
velop also the labour-power at its disposal. The relative mass of the indus-
trial reserve army increases therefore with the potential energy of wealth.
But the greater this reserve army in proportion to the active labour-army,
the greater is the mass of a consolidated surplus-population, whose misery
is in inverse ratio to its torment of labour. The more extensive, finally, the
lazarus-like layers of the working-class, and the industrial reserve army,
the greater is official pauperism. This is the absolute general law of capitalist
accumulation. Like all other laws it is modified in its working by many cir-
cumstances. . . . (p. 603)
Chief among these circumstances is the simple fact that “paupers” often
simply will not stand for the status they are assigned, and this becomes
a problem of social regulation, which may itself take on a particular his-
torical logic. The very existence of such an army of poverty, which is so
necessary to the expansion of capital, means there is an army of human-
ity that must be strictly controlled or else it will undermine the drive to-
ward accumulation. If this has been a constant fact of capitalist develop-
ment, then what sets the present era, and the present wave of anti-
homeless laws, apart is the degree to which such regulation has also be-
come an important ingredient in not just expanding capital but in either
attracting it in the first place or in protecting it once it is fixed in partic-
ular places. This is what anti-homeless laws are meant to do. The con-
tradiction, then, is that the homeless and poor are desperately needed,
but not at all wanted, and so the solution becomes a geographical one:
regulating space so that homeless people have no room to be here.14
In the mid-1980s, Andrew Mair (1986, 351) made a similar
claim—about the necessity of removing homeless people from contem-
porary urban centers so as to assure their continued viability as sites for
capital accumulation—for the case of Columbus, Ohio. He suggested
that “while the removal of the poor may appear merely incidental with
respect to urban redevelopment . . . it can be argued that the poor must
necessarily be removed for post-industrial development to occur.” But
necessary as it may be, it is abundantly clear that as long as removal de-
pended on the relocation of services (as described by Mair 1986; see
also Dear and Wolch 1987; Takahashi 1998; Wolch and Dear 1993), it
has not really worked. Closing down and relocating soup kitchens and
shelters in city after city—or the creation of service-dependent ghettos
(Dear and Wolch 1987) in marginal parts of the city—proved at best a
temporary solution as more and more homeless people came to colo-
nize the streets of downtown business and commercial districts. Ex-
cluded from housing by the destruction of single-room-occupancy ho-
tels and other inexpensive housing (Baum and Burnes 1993, 139; Blau
1992, 75; Groth 1994; Hartman 1987; Hopper and Hamberg 1984;
Kasinitz 1986); marooned by the retrenchment from federally subsi-
dized housing for the poor beginning with the Carter administration,
reaching full steam during the Reagan years, and fully consummated in
the Clinton administration (Leonard, Dolbeare, and Lazere 1989; Crump
2002, in press); made redundant by a quickly shifting economy that has
seen real wages stagnate and even decline for most workers even during
an economic boom; and thrown onto the streets through deinstitution-

alization unaccompanied by a concomitant commitment to community-
based care (Wolch 1980; Dear and Wolch 1987; Wolch and Dear 1993),
homeless people turned to begging, hanging out, sleeping on the very
streets they were meant to be excluded from. Similarly, these years saw
fledgling movements by homeless people to protest their attempted ex-
clusion from public space. When, in 1993, the Santa Monica City Coun-
cil considered enforcing a law closing public parks from midnight until
5 A.M., for example, organized homeless people demanded that the
sponsoring councilmember tell them where they could sleep if not in
the parks of the city. The councilmember responded, “Why not City
Hall?” About 100 homeless people—single men and women, families
and the elderly—moved onto the City Hall lawn for 2½ months until
the city agreed not to enforce the sleeping ban, essentially admitting
that the legal control of public space rendered life impossible for home-
less people (Howland 1994, 34–35).15
Yet despite, and quite likely because of, such protests, the legal
exclusion of homeless people from public space (or at least the legal
exclusion of behaviors that make it possible for homeless people to sur-
vive) has increased in strength during the 1990s, creating and reinforc-
ing what Mike Davis (1991) has called for Los Angeles “a logic like
Hell’s.” This hellish logic is, of course, a response to another quite hell-
ish one: the logic of a globalized economy that is successful to the de-
gree that people buy into the ideology that makes their places to be little
more than mere factors of production, factors played off other factors in
pursuit of a continual spatial fix (Harvey 1982) to ever progressive cri-
ses of accumulation. It is a response, then, that seeks to reregulate the
spaces of city so as to eliminate people quite literally made redundant
by the very capital the cities now so desperately seek to attract.
It might seem absurd to argue that the proliferation of anti-homeless
legislation is part of continual experimentation in devising a new “mode
of regulation” for the realities of post-fordist accumulation (cf. Lipietz
1986). After all, the disorder of urban streets seems to bespeak precisely
the inability to regulate the contemporary political economy. But, as
Lipietz (1986, 19) argues, a “regime of accumulation” materializes in
“the form of norms, habits, laws, regulating networks, and so on that
ensure the unity of the process, i.e. the appropriate consistency of indi-
vidual behaviors with the schema of reproduction”; and, as Harvey
(1989, 122) further comments, such talk of regulation “focuses our at-
tention on the complex interrelations, habits, political practices, and

cultural forms that allow a highly dynamic, and consequently unstable,
capitalist system to acquire a semblance of order to function coherently
at least for a certain period of time.” Hence, cities are grappling with
two—perhaps contradictory—processes. On the one hand, they must
seek to attract capital seemingly unfettered by the sorts of locational de-
terminants important during the era when fordism was in development.
That is, they must make themselves attractive to capital—large and
small—that has the luxury of choosing one location among the many
proffered. On the other hand, the cities (together with other scales of
the state) must create a set of “norms, habits, laws, regulating net-
works” that legitimizes the new rules of capital accumulation, rules in
which not only is location up for grabs but also companies seek returns
of greater relative surplus value by laying off tens of thousands of work-
ers in a single shot, outsourcing much labor or resorting to temporary
employment agencies—that is, in which the creation of a reserve army
of labor is seen as a positive good.
These two processes—making the city attractive to capital and en-
couraging the formation of a reserve army labor—are in many (but not
all) ways contradictory, and they are continually negotiated within the
urban landscape itself. Within capitalist systems, the built environment
acts as a sink for investments at times of overaccumulation in the “pri-
mary” circuit of capital, the productive system (Harvey 1982, Ch. 8).
This statement, however, should not be read to imply either that the
landscapes thus produced are somehow “useless” to capital or that local
elites, growth coalitions, or a more nebulous “local culture” has no di-
rect influence on the form and location of such investment (see D. Wil-
son 1991). Rather, investment in the built environment is cyclical,
occuring within an already developed built environment. “At any one
moment the built environment appears a palimpsest of landscapes fash-
ioned according to the dictates of different modes of production at dif-
ferent stages of their historical development” (Harvey 1982, 233). The
key point, however, is that under capitalism this built environment
must “assume a commodity form” (Harvey 1982, 233). That is, while
the use values incorporated in any landscape may (for different parts of
the population) remain quite important, the determining factor of a
landscape’s usefulness is its exchange value. Buildings, blocks, neigh-
borhoods and districts can all be subject, as market conditions change,
as capital continues its search for a “spatial fix,” as other areas become
more attractive for development, to rapid devaluation. Quoting Marx,

Harvey (1982, 237) argues that “[c]apital in general is ‘indifferent to ev-
ery specific form of use value’ and seeks to ‘adopt or shed any of them as
equivalent incarnations.’ ” People feel this in their bones; they under-
stand the incredibly unstable, tenuous nature of investment fixed in im-
movable buildings, roads, parks, stores, and factories. If, therefore, the
built environment appears as “the domination of past ‘dead’ labour (em-
bodied capital) over living labour in the work process” (Harvey 1982,
237), then the goal of those whose investments are securely tied to the
dead is to assure that the landscape always remains a living memory, a
memory that still living capital finds attractive and worth keeping alive
itself. Investments—dead labor—must therefore be protected at all
costs.16 If a built environment possesses use value to homeless people
(for sleeping, for bathing, for panhandling) but that use value threatens
what exchange value may still exist, or may be created, then these use
values must be shed. The goal for cities in the 1990s has been to experi-
ment with new modes of regulation over the bodies and actions of the
homeless in the rather desperate hope that this will maintain or en-
hance the exchangeability of the urban landscape in the global economy
of largely equivalent places. The annihilation of space by law, therefore,
is actually an attempt to prevent those very spaces from being “cre-
atively destroyed” by the continual and ever revolutionary circuits of
capital.17
Hence, what cities are attempting is not a tried-and-true set of reg-
ulatory practices but rather a set of experiments designed to negotiate
the insecure spaces of accumulation and legitimation at the dawn of the
21st century. The goal is to create, through a series of laws and ideologi-
cal constructions (concerning, for example, who the homeless “really”
are), a legitimate stay against the insecurity of flexible capital accumula-
tion. That is, through these laws and other means, cities seek to use a
seemingly stable, ordered urban landscape as a positive inducement to
continued investment and to maintain the viability of current invest-
ment in core areas (by showing merchants, for example, that they are
doing something to keep shoppers coming downtown). In this sense,
anti-homeless legislation is reactionary in the most basic sense. As a re-
action to the changed conditions of capital accumulation, conditions
themselves that actively (if not exclusively) produce homelessness (see
Marcuse 1988), such legislation seeks to bolster the built environment
against the ever possible specter of decline and obsolescence. It actually
does not matter that much if this is how capital “really” works; it is
enough that those in positions of power and influence believe this is
how capital works.18 As Seattle City Attorney Mark Sidran told the city
council, the purpose of stringent controls on the behavior of homeless
people is “to preserve the economic viability of Seattle’s commercial dis-
tricts” (Seattle Times 1993b); or, as he wrote more colorfully in an op-ed
piece, “we Seattleites have this anxiety, this nagging suspicion that de-
spite the mountains and the Sound and the smugness about all our ad-
vantages, maybe, just maybe we are pretty much like those other big
American cities, ‘back East’ as we used to say when I was a kid and be-
fore California joined the list of ‘formerly great places to live’ ” (Sidran
1993). The purpose, then, is certainly not to gain hold of the conditions
that produce so much anxiety. Regulation is designed not to regulate the
economy but to regulate its victims.
Regulation is thus always ideological—a means of displacing scru-
tiny and blame. Indeed, regulating the poor (Pivin and Cloward 1992)
has long been a primary ideological function of the state at both local
and national scales. Such regulation is necessary, as Piven and Cloward
(1992) show, because it is the means by which wages and other “drains”
on capital accumulation may be minimized; it is how the state seeks to
safeguard accumulation—and to maintain its own legitimacy by divid-
ing factions of the exploited classes from one another. That we are in
the midst of an ugly class war, centered on the “structural adjustment”
of the welfare state and the criminalization of poverty, is certainly no
news. But, beginning at least with the recession of the early 1980s, what
does seem novel is the ferocity with which this goal is pursued: the
rapid rise of the “revanchism” that Smith (N. Smith 1996, 1998) so
compellingly details. Such revanchism as regards the homeless has
worked in two steps. First there has been a reinvestment in a language
of deviance and individual disorder at the expense of structural expla-
nations for (and solutions to) the problem of homelessness. This ac-
complished, the second step has been to find the means to regulate—
through law—this deviance and disorder, completing the turn away
from any sense that homelessness might have extraindividual causes.
The history of this shift in thinking about homelessness is worth briefly
reviewing.
During the relatively stable long-term boom from the end of World
War II until the early 1970s, homelessness in American cities was
scripted quite clearly by discourses centered on deviance, disaffiliation,
and alcoholism. The stereotypical homeless person was a single white

male skid row bum subsisting on mission charity and fortified wine.19
Considered misfits, wasted humans incapable because of their personal
problems of realizing any part in the affluence the postwar period guar-
anteed to all those who wanted it, they were perhaps to be pitied, cer-
tainly to be shooed away from downtown, and carefully confined within
traditional skidrows or other districts that had served the casual labor
markets of the first half of the century.
The explosion of homelessness, and especially the “discovery” that
women, children, and whole families were part of the homeless popula-
tion in the 1970s and 1980s, brought with it the beginning of a change
in discourses on homelessness. While the language of disaffiliation and
deviance retained a certain prominence, homeless advocates worked
hard to emphasize the structural determinants of homelessness (eco-
nomic decline; the dismantling of the welfare state, of which deinstitu-
tionalization can be seen as a part;20 gentrification and redevelopment
in areas susceptible to it; etc.).21 This change in the tenor of the debate,
however, was quickly met with a reassertion of claims about homeless-
ness as an individual problem, claims that explicitly sought to turn
debate away from economic causes. Perhaps the clearest sustained ex-
ample of this reassertion of personal disorder as the primary cause of
homelessness is Baum and Burnes’s (1993) A Nation in Denial, which
argues that not until we admit that the problem of homelessness is lo-
cated within addicted and mentally ill individuals can we understand
that structural explanations have done more harm than good. Greeted
by a great sigh of relief by much of the media (cf. Raspberry 1992;
Hamill 1993; Leo 1993), Baum and Burnes’s argument can be seen as a
primary plank in legitimizing the recrminalization of homeless people’s
behaviors (even if that was not the intent of the authors). Hamill
(1993), for example, uses A Nation in Denial as a springboard for advo-
cating “quarantining” homeless people on closed military bases.
Should anti-homeless legislation succeed, Hamill’s “solution” will
be redundant. The proliferation of anti-homeless legislation clearly in-
dicates that the battle has largely been won by those who seek to
repersonalize homelessness. Such legislation is possible only in the ab-
sence of an understanding that homelessness has extrapersonal struc-
tural determinants. Or, more accurately, troublesome homelessness is
seen to reside in those who refuse the numerous social services prof-
fered to them to help them negotiate the conditions that make them
homeless. Whether homelessness is structurally produced or not, this

logic goes, people remain homeless by choice.
So, for example, in an article praising San Francisco’s Matrix pro-
gram (a set of initiatives designed to enforce “public order” and force
homeless people into the tattered social services system), MacDonald
(1995, 80) wrote that the “city’s efforts to place people in shelter have
proved disappointing.” Over 2 months, Matrix enforcement teams22
tried to distribute 3,820 vouchers for a night’s stay in a church shelter
for men. But “less than half the vouchers were taken, and only 678 actu-
ally used.” MacDonald (1995, 80) found even more alarming the fact
that of 3,000 general assistance (GA) recipients who claimed homeless-
ness in San Francisco during the mid-1990s (and who received $345 a
month), only 700 took advantage of a voluntary program “whereby GA
recipients can turn over their checks to a non-profit housing advocacy
group which arranges for a discounted room in a clean and city in-
spected single room occupancy hotel.” In exchange, the homeless per-
son is given a $65 allowance for the month for all other expenses. When
numerous contacts with homeless GA recipients failed to increase par-
ticipation in this program, San Francisco voters made receiving GA con-
tingent upon proof of housing. If a rent receipt could not be produced, a
GA recipient would be offered shelter under the “volunteer” program. If
the recipient refused, she or he would be stricken from the relief rolls.
MacDonald’s conclusion?
In passing this measure, San Franciscans acknowledged that providing

more housing and other services will be unavailing unless society no lon-
ger allows the utilization of those resources to be optional. Funding such
services is, in any case, often irrelevant to achieving greater civility in the
streets. Matrix has made an enormous difference in San Francisco, though
it has placed few people in permanent housing. This suggests that merely
enforcing long-standing norms of public conduct may have far more effect
on reducing disorder than any number of social programs. (MacDonald
1995, 80)
Note the shift in logic here. No matter what the cause of homelessness,
homeless people refuse to take advantage of all that society offers them.
In that sense they are voluntarily homeless, and thus disciplining them
is not only desirable but also necessary. Successfully reducing homeless-
ness to a “lifestyle choice,” MacDonald legitimizes all manner of puni-
tive measures against those who “choose” it. “San Francisco is both a
symbol of the past and the wave of the future. Pursuing freedom it got
chaos. It is now re-discovering that liberty consists not in overturning
social rules, but in mutual adherence to them” (MacDonald 1995, 80).
As with all “little Arnolds,” MacDonald fails to raise the question of
who establishes these rules and who they serve (much less the question
of how one is to live in San Francisco on $65 a month without panhan-
dling); the implication that poor, homeless people have no right to the
city could not be clearer. As Waldron (1991, 324) so clearly shows,
“what we are dealing with here is not just ‘the problem of homeless-
ness,’ but a million or more persons whose activity and dignity and free-
dom are at stake.” But so too are we creating, through these laws and
the discourses that surround them, a public sphere for all of us that is
just as brutal as the economy that spawned the conditions in which
homelessness developed.
CITIZENSHIP IN THE SPACES OF THE CITY:

A BRUTAL PUBLIC SPHERE
Now one question we face as a society—a broad question of justice and so-
cial policy—is whether we are willing to tolerate an economic system in
which large numbers of people are homeless. Since the answer is evidently,
“Yes,” the question that remains is whether we are willing to allow those
who are in this predicament to act as free agents, looking after their own
needs, in public places—the only space available to them. It is a deeply
frightening fact about the modern United States that those who have
homes and jobs are willing to answer “yes” to the first question and “no”
to the second. (Waldron 1991, 304)
In the decade since Jeremy Waldron wrote these words, the crisis of
homelessness in the United States has only deepened, and the vigor
with which those of us with homes who answer “no” to Waldron’s sec-
ond question has only increased. But we often fail to realize the degree
to which this “no”—and its codification in anti-homeless laws—is cre-
ating a truly brutal public sphere in which not only is it excusable to de-
stroy the lives of homeless people but also there seems to be scant possi-
bility for a political discourse concerning the nature and types of cities
we want to build.23 That is, anti-homeless laws reflect a changing con-
ception of citizenship which, contrary to the hard-won inclusions in the
public sphere that marked the civil rights, women’s, and labor move-
ments in past decades, now seeks to reestablish exclusionary citizenship

as just and good.
Craig Calhoun (1992, 40) has argued that the most valuable aspect
of Habermas’s The Structural Transformation of the Public Sphere (1989)
is that it shows “how a determinate set of sociohistorical conditions
gave rise to ideals they could not fulfill” and how this space between
ideal and reality might hopefully “provide motivation for the progres-
sive transformation of these conditions.” In later work, Habermas
turned away from such an historically specific critique to focus on “uni-
versal characteristics of communication” (Calhoun 1992, 40). Others,
however, have retained the ideal of a critical public sphere in which
continual struggle seeks to force the material conditions of public life
ever closer to the normative ideal of inclusiveness (as we saw in Chap-
ter 1). Calhoun (1992, 37) suggests that social movements, not just dis-
passionate individuals, have been central in “reorienting the agenda of
public discourse and bringing new issues to the fore” (see also Fraser
1990). As Calhoun (1992, 37) notes, the “routine rational–critical dis-
course of the public sphere cannot be about everything at once. Some
structuring of attention, imposed by dominant ideology, hegemonic
powers, or social movements, must always exist.” Theories of the public
sphere—and practices within it—therefore must always be linked to
theories of public space (see Howell 1993). The regulation of public
space necessarily regulates the nature of public debate: the sorts of ac-
tions that can be considered legitimate, the role of various groups as
members of the legitimate public, and so forth. Regulating public space
(and the people who live in it) “structures attention” toward some is-
sues and away from others.
Similarly, the perhaps inchoate interventions into public debate
made by homeless people through their mere presence in public forces
attention on the private bodies and lives of homeless people themselves.
This is the “crucial where” question to which Tim Cresswell (1996) has
drawn our attention in his studies of social transgression. Cresswell ar-
gues that regulating people is often a project defined by the attempt to
“purify” space, by the attempt to create for any space a set of determi-
nant meanings as to what is proper and acceptable. Yet these proprietary
rules are continually transgressed; and these transgressions are just as
continually redressed through dominant discourse that seeks to rein-
force the “network or web of meanings” of place such that the pure and
proper is shored up against transgression. The object of such discourse,
Cresswell (1996, 59) writes, “is an alleged transgression, an activity that

is deemed ‘out of place’ ”—for example, just those sorts of “private” ac-
tivities of the homeless in public space (see Staeheli 1996) that are now
the subject of such intense legal regulation. By being out of place,
homeless people threaten the “proper” meaning of place.
But there is more to it than that. By being out of place, by doing
private things in public space, homeless people threaten not just the
space itself but also the very ideals upon which we have constructed our
rather fragile notions of legitimate citizenship. Homeless people scare
us: they threaten the ideological construction that declares that public-
ity—and action in public space—must be voluntary (see Chapter 4). Ef-
forts such as Heather MacDonald’s (1995) to show the voluntary nature
of homelessness are therefore crucial for another reason than that sug-
gested above. Such efforts provide an ideological grounding for reassert-
ing the privileges of citizenship, for assuring ourselves that our democ-
racy still works, despite the unsettling shifting of scales associated with
the annihilating economy. As homelessness grows concomitantly with
the globalization of the economy (eroding boundaries, unsettling place,
throwing into disarray settled notions about home, community, nation,
and citizenship), homeless people marooned in public frighten us even
more. Not there but for the grace of God, but rather there but for the
grace of downsizing, outsourcing corporations, go I. So it becomes vital
that we reorder our cities in such a way that homelessness is “neutral-
ized” (Marcuse 1988) and the legitimacy of the state, and indeed our
own sense of agency, is maintained. The rights of homeless people do
not matter (when in competition with “our” rights to order, comfort,
places for relaxation, recreation, and unfettered shopping) simply be-
cause we work hard to convince ourselves that homeless people are not
really citizens in the sense of free agents with sovereignty over their
own actions.24 Anti-homeless legislation helps institutionalize this con-
viction by assuring that the homeless have no place in public to be sov-
ereign.
Anti-homeless legislation, by seeking to annihilate the spaces in
which homeless people must live—by seeking, that is, to so regulate the
public space of the city that there is literally no room for homeless peo-
ple—re-creates the public sphere as intentionally exclusive, as a sphere
in which the legitimate public only includes those who (as Waldron
would put it) have a place governed by private property rules to call
their own. Landed property thus again becomes a prerequisite for legiti-
mate citizenship. Denied sovereignty, homeless people are reduced to

the status of children: “the homeless person is utterly and at all times at
the mercy of others” (Waldron 1991, 229). Reasserting the child-like
nature of some members of society so as to render them impotent is, of
course, an old move long practiced against women, African Americans,
Asians and some European immigrants, and unpropertied radical work-
ers throughout the course of American history.
But such moves are not just damaging to their subjects. Rather,
they directly affect the rest of us too. “[I]f we value autonomy,” Waldron
(1991, 320) argues,
[w]e should regard the satisfaction of its preconditions as a matter of im-

portance; otherwise, our values simply ring hollow so far as real people are
concerned. . . . [T]hough we say there is nothing dignified about sleeping
or urinating, there is certainly something inherently undignified by being
prevented from doing so. Every torturer knows this: to break the human
spirit, focus the mind of the victim through petty restrictions pitilessly im-
posed on the banal necessities of life. We should be ashamed that we have
allowed our laws of public and private property to reduce a million or
more of our citizens to something like this level of degradation.
We are re-creating a society—and public life—on the model of the tor-

turer, swerving wildly between paternalistic interest in the lives of our
subjects and their structured degradation. In essence, we are re-creating
a public sphere that consists in unfreedom and torture. Or, as Mike Da-
vis (1990, 234) puts it in a chillingly accurate metaphor: “The cold war
on the streets of Downtown is ever escalating.” To the degree we can
convince ourselves that the homeless are the communists of our age, we
are calling this public sphere right and just. And that has the effect of le-
gitimizing not only our own restrictions on the autonomy of others but
also the iniquitous political economy that creates the conditions within
which we take such decisions.
LANDSCAPE OR PUBLIC SPACE?
Building a city depends on how people combine the traditional economic

factors of land, labor, and capital. But it also depends on how they manip-
ulate symbolic languages of exclusion and entitlement. The look and feel
of cities reflect decisions about what—and who—should be visible and
what should not, [about] concepts of order and disorder, and [about] uses
of aesthetic power. (Zukin 1995, 7)
The relationship between the annihilating economy and the anni-

hilation of space by law made visible through anti-homeless legislation
is clearest in discourses on what could broadly be considered “aesthet-
ics.” When Senator Patty Murray (D-WA) was first elected to Congress
in 1992, she was shocked by what she saw on the streets of Washington,
DC: “I look around and see a city in shambles. . . . I see people in the
streets with cups next to me, and as I come to stop signs, begging for
money” (Washington Post 1993b). After quoting Senator Murray, the
Washington Post reporter continued: “The beggars, many but not all of
whom are homeless, are among those sights in the nation’s capital that
tourists don’t enjoy.” And the executive vice president of the DC Con-
vention and Visitors Association, Dan Mobley, added: “Panhandlers are
not a pretty picture.” He also noted, however, that “we have never had
anyone say they won’t come here because of the panhandlers” (Washing-
ton Post, 1993b). Even so, in numerous cities around the country, con-
cern with removing homeless people so as to restore the “pretty picture”
remains a paramount obsession.25
The executive officer of Downtown Cincinnati (a business associa-
tion), for example, has argued that “Panhandling today prevents many
visitors—from Cincinnati’s suburbs and from out of town—from expe-
riencing and enjoying our beautiful downtown” (Cincinnati Enquirer
1995b). In Akron, a law criminalizing any (not just “aggressive”) pan-
handling was supported by the mayor because “the city was trying to
clean up its downtown image with the opening of the new . . . Conven-
tion Center and the expected opening next year of Inventure Place, the
home of the Inventors Hall of Fame” (Cleveland Plain Dealer 1994). And
the interim president of the Atlanta Convention and Visitors Bureau
(ACVB) supported a comprehensive “crackdown on vagrants, thugs
and general trespassing”: “I urge the ACVB and the community to clean
up our streets first; otherwise, all the marketing in the world will not
help Atlanta” (Atlanta Journal and Constitution 1991). “We would like as
many tools as possible to keep the city clean,” concurred San Diego Po-
lice Captain George Saldamando (Rodgers 1992). Indeed, by 2000, the
city of San Diego had turned the cleaning of streets—of both litter and
homeless people—over to a private program sponsored by the Centre
City Development Corporation and the downtown Property-based Busi-
ness Improvement District named “Clean and Safe” (Mitchell and
Staeheli 2002). As described by an official of the Downtown Partner-
ship, which manages the program, “Clean and Safe” uses power-hoses
to wash the sidewalks of inanimate waste and “ambassadors” to “get in
the face” of homeless people and convince them to move out of the
parks and off the sidewalks of downtown (quoted in Mitchell and
Staeheli 2002). By doing so, the city, property owners, and merchants
are convinced that tourists and middle-class suburbanites will find the
downtown attractive and want to spend more time there.
In each of these instances the concern is with the appearance of the
built environment of the city, with creating a landscape that does not
“leav[e] a bad impression on visitors by feeding the impression that our
downtown is unsafe” (Cincinnati Enquirer 1995a). The preferred method
for doing this—the promulgation of anti-homeless laws (and in many
instances turning their enforcement over to private security forces)—in
essence seeks to re-create downtown streets as a landscape. The point I
am making revolves around a particular definition of “landscape.” As
Denis Cosgrove (1984, 1985, 1993), Stephen Daniels (1993), and oth-
ers (cf. Schein 1997) have shown so well, “landscape” implies a particu-
lar way of seeing the world, one in which order and control over sur-
roundings takes precedence over the messy realities of everyday life. A
landscape is a “scene” in which the propertied classes express “posses-
sion” of the land and their control over the social relations within it. A
landscape in this sense is a place of comfort and relaxation, perhaps of
leisurely consumption, unsullied by images of work, poverty, or social
strife. Landscape, Cosgrove (1985, 49) shows, developed from and rein-
forces a “bourgeois rationalist conception of the world.” More recently,
Daniels and Cosgrove (1993; see also Cosgrove 1990, 1993) have ex-
plored the ways in which the landscapes operate not just as text, or as
visual representation, but as the “theater” or stage upon which the “dra-
mas” of life are enacted.26 Yet, the sort of stage being constructed
through the redevelopment of downtowns and their protection through
anti-homeless laws is, like the festival marketplace or mega-mall that
serve as its models, a theater for a “pacified public,” as Crilley (1993)
puts it (see Chapter 4), and as such it stages a spectacle in which the
homeless have little or no part to play. Indeed, homeless people’s con-
stant intrusions onto the stages of the city seems to threaten the care-
fully constructed suspension of disbelief on the part of the “audience”
that all theatrical performances demand, thereby seemingly turning that
audience away and toward other entertainments: the suburban mall or
the theme park (Sorkin 1992).
Anti-homeless laws are thus an intervention in urban aesthetics, in
debates over the look and form of the city. “Aesthetic judgments,”
Harvey (1990, 429) has written, “have frequently entered in as powerful

criteria of political and social action.”27 When these aesthetic judg-
ments have the effect of valuing the spaces of the city as landscape
rather than public space, they serve up a double “suspension of disbe-
lief”:
The power of a landscape does not derive from the fact that it offers itself
as spectacle, but rather from the fact that, as mirror and mirage, it presents
any susceptible viewer with an image at once true and false of the creative
capacity which the subject (or Ego) is able, during a moment of marvelous
self-deception, to claim as his own. A landscape also has the seductive
power of all pictures, and this is especially true of an urban landscape—
Venice, for example—that can impose itself immediately as a work.
Whence the archetypal touristic delusion of being a participant in such a
work, and of understanding it completely, even though the tourist merely
passes through a country or countryside and absorbs its image in a quite
passive way. The work in its concrete reality, its products, and the produc-
tive activity involved are all thus obscured and indeed consigned to obliv-
ion. (Lefebvre 1991, 189, emphasis in original)
Creating a city as a landscape therefore is important because it restores

to the viewer (the tourist, the suburban visitor, or even the housed resi-
dent) an essential sense of control within a built environment, which is
rather “controlled” through the creative, seemingly anarchic, destruc-
tion of an economy (operating at all scales) that can just as easily de-
stroy the careers and lives of the viewer as it has already the people
“downsized”:
Even in boom times, downtown Dallas was no field of dreams. In the early
1980s developers built it—stacking glass, steel and masonry ever sky-
ward—but the people did not come. . . . Too soon, boom times departed as
well. The corporate merger and acquisition phase that followed was
marked by downsizing and consolidations that caused the office vacancies
to skyrocket. Downtown Big D became the Big Empty. Decay followed.
(Houston Chronicle 1995)
With the promulgation of anti-homeless laws, “as absolute political

space extends its sway” in the name of safeguarding urban accumula-
tion, “the impression of transparency” inherent in the landscape “be-
comes stronger and stronger” (Lefebvre 1991, 189).
If the illusion of control is one aspect of making over a city as land-
scape (through the “privatization” of public space that accompanies
laws such as those directed at the homeless), then a second aspect is the
reinforcing of an ideology of comfort, or what Sennett (1994, 18) has
called the “freedom from resistance.” To extend Sennett’s argument, the
urban landscape is increasingly designed not just to facilitate the move-
ment of capital but also so that “citizens” can “move without obstruc-
tion, effort, or engagement” (Sennett 1994, 18).28 “This desire to free
the body from resistance,” Sennett (1994, 18) argues, “is coupled with
the fear of touching, a fear made evident in modern urban design.” It is
made even more evident in debates surrounding “aggressive panhan-
dling” laws. The Washington, DC, begging ordinance passed in 1993 is
typical. It prohibits “approaching, speaking to or following . . . in a way
that would cause an ordinary person to fear bodily harm” (Washington
Post 1993a; Roll Call 1993). Assault, of course, is already against the
law, as is threatening harm. This law criminalizes not assault or threat-
making but rather making someone feel uncomfortable. And panhan-
dling, sleeping in public parks, or urinating in alleys makes us, myself
included, necessarily uncomfortable. As it should. Discomfort, however,
is a far cry from either “wrong” or “dangerous,” even if we are fre-
quently reluctant to make such distinctions. “He said, ‘I want you to do
me a favor.’ I said, ‘I don’t have any money.’ I figured that is what he
wanted. It really scares me,” an elderly woman in Memphis reported. “I
don’t have a gun, but this is one time [I wish I did]” (The Commercial
Appeal (Memphis), 1994). The fear of bodily contact is often less palpa-
ble than that expressed by this woman,29 but it shows up in concerns
over our ability to move down a street or into a place of business with-
out encountering a homeless person. “The city street gauntlet may in-
clude six panhandlers in one block. A few sit silently on a bench or
crouch against buildings, thrusting plastic-foam cups at the strangers
who rush past them. Most, either through their signs or pleas, make
more direct requests for money” (Washington Post 1993b). Even the
most passive of beggars are threatening: the street becomes a “gauntlet”
and the silent continually “thrust” toward you.
Sennett argues that “the ability to move anywhere, to move without
obstruction, to circulate freely, a freedom greatest in an empty volume”
has come to be defined as freedom itself in “Western civilization.”
The mechanics of movement has invaded a wide swath of modern experi-

ence—experience which treats social, environmental, or personal resis-
tance, with its concomitant frustrations, as somehow unfair and unjust.
Ease, comfort, “user-friendliness” in human relations come to appear as

30
guarantees of individual freedom of action. (Sennett 1994, 310)
There are two important points here. First, such freedom of movement
is only possible by denying others the same right (cf. Blomley 1994a,
1994b). Anti-homeless laws have been challenged on the grounds that,
by effectively banning some people from public spaces, they are in vio-
lation of homeless peoples’ constitutional right to travel (Ades 1989; Si-
mon 1995; Mitchell 1998b). Hence, our mobility is predicated on the
immobility of the homeless. The homeless provide “resistance” to our
unfettered movement, cause discomfort as we try to navigate the city.
And those homeless people who persist in challenging our right to walk
by without helping them to survive are anything but “user-friendly.”
The second point is that this ideology of comfort and individual
movement as freedom reinforces the “impression of transparency” that
works to make the urban landscape knowable by erasing its “products
and productive activity.” “[R]esistance is a fundamental necessity of the
human body,” Sennett (1994, 310) concludes: “Through feeling resis-
tance, the body is roused to take note of the world in which it lives. This
is the secular version of the lesson of exile from the Garden. The body
comes to life when coping with difficulty.” Reflecting on the construc-
tion of a city built on the ideal of the flâneur in the 19th century, Sennett
(1994, 347) further argues that “a public realm filled with moving and
spectating individuals . . . no longer represented a political domain.”
And in places like contemporary Greenwich Village (where Sennett
lives) or other urban neighborhoods, “ours is a purely visible agora”
where “political occasions do not translate into everyday practice on the
streets; they do little, moreover, to compound the multiple cultures of
the city into common purposes” (Sennett 1994, 358). This, of course, is
ever more the case as city government after city government seeks to
enhance city images by engaging in “quality of life” campaigns.
In short, “quality of life” initiatives such as anti-homeless laws raise
a politics of aesthetics above the politics of survival. They substitute an
image of the urban landscape for a grounded politics of place designed
to improve the lives of all the people of the city. They reduce the “right
to the city” for all to a “right” for some to be free from the annoying “re-
sistance” of those thrown into the streets they want to walk on. Crilley
(1993, 157) sets “megastructures” like Canary Wharf in London or the
World Financial Center in New York—structures fully controlled such
that they reproduce the life of the city as nostalgia—against the “tradi-
tional city.” “Traditional cities,” he writes, “with their connotations of
vitality, social interaction and heterogeneity, cannot be ‘programmed’ or
‘animated’; history and memory in the city do not have ‘essences’ reduc-
ible to visual images; and a genuine public presence cannot be engi-
neered through the application of correct forms, dazzling spectacle, or
the lure of free bread and circuses.” Yet, this is precisely what cities are
attempting with the crackdown on homeless people. They seek to re-
place the public spaces of the city with landscape, to substitute the vi-
sual for the (often uncomfortable and troublesome) heterogeneous in-
teractions of urban life.
If malls and festival marketplaces represent one pole of what
Michael Walzer (1986) has called “closed-minded” public spaces (those
spaces designed for a single function, spending at the expense of hang-
ing out, for example, or, better yet, hanging out as a means to induce
spending), then anti-homeless laws represent the other pole. “In 1994,
the message in many U.S. cities to people on the street,” noted colum-
nist Colman McCarthy (1994), “was either get lost or get arrested.”
Things have only deteriorated since then (Foscarinis, Cunningham-
Bowers, and Brown 1999).
CONCLUSION
Public space—like the right to the city—is always a negotiation (see

Goheen 1993). The proliferation of anti-homeless laws ups the ante in
these negotiations by seeking explicity—and within the realm of law—
to remove some people from the negotiators’ table through the simple
expedient of turning them into criminals. These laws have as a goal—
perhaps not explicit, but clear nonetheless—the redefinition of public
rights so that only the housed may have access to them. They further
the goal of redefining the public space of the city as a landscape, as a pri-
vatized view suitable only for the passive gaze of the privileged as they
go about the work of convincing themselves that what they see is sim-
ply natural.
The genealogy of these laws in the insecurity the contemporary
bourgeoisie feels within the “globalizing” economy seems clear enough.
In an era in which the “symbolic economy” has risen to replace a seem-
ingly more stable industrial-based economy, the “culture of cities” is
everything (Zukin 1995). This “culture”—this landscape—is itself a
tenuous thing, not at all a sure or permanent attraction to footloose cap-

ital. The rise, then, of what Zukin calls the “aestheticization of fear”
seems a quite understandable, if still appalling, thing. By creating super-
ficially pleasing landscapes we hope to stave off the inevitable, to steal
from history a few more months or years of prosperity. If this genealogy
is clear, however, so too are the costs. Anti-homeless laws are perhaps
the clearest indication of the Faustian bargain we are daily making to
protect our own relative affluence. The cost to homeless people we so
willingly sacrifice is of course the greatest cost. But so too is the rather
unthinking construction of a brutal public sphere a high price to pay for
an attractive downtown. “Fear proves itself,” Mike Davis (1990, 224)
quotes William Whyte as saying, while adding himself that the “social
perception of threat becomes a function of the security mobilization it-
self, not crime rates.”31
Indeed, anti-homeless laws indicate the degree to which the public
sphere, modeled as it is on the palpable fear of the bourgeoisie, has be-
come less a place of critique, debate, and struggle—a place where the
cry and demand for the right to the city is heard over and over again—
and more an arena for the attempted legitimation of a brutal political
economy and landscape as a just political economy and landscape.
NOTES
1. As we will see, the use of quality-of-life laws for such purposes is quite
consistent with their overall purpose: the elimination of public space.
2. Cincinnati’s ordinances, passed in 1995, were struck down in court. New
ordinances, more narrowly drawn, but achieving the same thing were
passed in 2002. See Cincinnati Enquirer (2002).
3. The original revanchism was a movement of reaction against both the roy-
alty and the working class in late-19th-century France. Deeply nationalist,
it mobilized around “traditional values” (Smith 1996, 45).
4. For an excellent analysis of this dynamic, see Henderson (1999, Ch. 2).
5. It is remarkable how often, now, investment in museums or concert halls
(and even more so stadiums) is sold to the public not because it might
make the city a better place to live but because it will make it “competi-
tive”—a remarkably anemic reason for public investment.
6. In July 2001, the Los Angeles City Council voted to approve the installa-
tion of pay toilets around that city’s skid row, so perhaps defecating in al-
leys will no longer be as great a need there. The provision of toilets was
approved after a 20-year debate. Really (New York Times 2001).
7. Designed to control homeless people, these laws were found to be of great
value during the 1999 protests at the WTO meeting in Seattle, when hun-
dreds of activists were arrested, not for rioting, but for such quality-of-life
offenses as sleeping in a public place (Falit-Baiamonte 2000). The mutabil-
ity of law—its ability to be transferred from one realm of control to an-
other—is something we ignore to our great peril.
8. The reference is to the 1993 Meg Ryan and Tom Hanks movie Sleepless in
Seattle, about a relationship formed in a cyberspace of sorts: a late-night
coast-to-coast chat radio show.
9. This despite a protestation from the Assistant City Attorney that the law
did not target panhandlers. The original Seattle Times article quoted above
included the phrase “ordinances that would ban panhandlers from sitting
on sidewalks.” Later editions carried the following: “Correction: The City’s
sidewalk ordinance prohibits sitting or lying on sidewalks in business areas
and does not target panhandlers according to Assistant City Attorney
Laurie Mayfield. This article indicated otherwise.” The law certainly did
not target espresso sippers.
10. Shelters are no exception. Homeless people are required to behave accord-
ing to the rules established by their operators, and their ability to remain in
the shelter is at the sufferance of the management.
11. It is also why advocates for the homeless have sought to contest anti-
homeless laws—so far without much success—on both “right to travel”
(and stay put) and cruel and unusual punishment principles (Simon 1992;
Mitchell 1998b).
12. As Robert Ellickson (1996) details, this is the direction a number of cities
are being forced to move in by courts as they respond to the sorts of argu-
ments that Waldron lays out.
13. As we will see in the next chapter, the urban right takes a very different
view of freedom. According to legal scholars such as Ellickson (1996), it
seems to consist only in not being jailed.
14. Of course, Engels made much the same point a century and a half ago in
his examination of the condition of the working class in Manchester. He
argued there that the bourgeoisie had no real solution to the housing prob-
lem except to move the poor about, shifting the crisis from one district to
another. Too little has changed in the ensuing years.
15. Similar actions have been repeated elsewhere in California: see Johnson
and Norse (1996).
16. I develop a theory of landscape based on “dead labor” more fully in Mitch-
ell (2001a) and (2003).
17. My point is not at all that the globalization of capital is some sort of deus ex
machina over which we have no control. Rather, it is that a contradiction
exists between the need for ever faster turnover times by capital in general
and the need to fix some capital in particular places. Capital needs places.
But the question is always one of which places, endowed with what sorts of
attributes, and this is a question that is only answered in practice. That be-
ing so, people with investments rooted in particular places find their in-
vestments to be quite insecure. Property, a necessary condition of capital
accumulation, can also be rapidly devalued, in essence mortgaging the suc-
cess of some kinds of investment against the loss of other kinds. Capital is
not united, and its complex divisions and contradictions are precisely what
lead to the overweaning sense of insecurity that governs most American
cities.
18. As the Berkeley merchant’s self-fulfilling argument quoted in the preceding
chapter indicates.
19. For reviews and examples of discourses on homelessness (in chronological
order), see Sollenberger (1911); Anderson (1923); Dees (1948); Bahr
(1970, 1973); Spradley (1970); Blumberg, Shipley, and Barsky (1978);
Hopper and Hamberg (1984); Schneider (1986); Hoch and Slayton (1989);
Rossi (1989); Baum and Burnes (1993); Wolch and Dear (1993); Taka-
hashi (1998).
20. This was not the only reason for deinstitutionalization, of course. Its his-
tory is much more complex than that and incorporates much that is good,
such as the desire to dismantle “total institutions” for the physically and
mentally ill.
21. Some examples include Hombs and Snyder (1982); Hopper and Hamberg
(1984); Kasinitz (1986); Mair (1986); Dear and Wolch (1987); Hartman
(1987); Marcuse (1988); Deutsche (1990); Blau (1992); Veness (1993);
Wolch and Dear (1993). Good recent reviews are Takahashi (1996; 1998,
4–13).
22. The program has two components. First, police engage in something like
“a military campaign. Retaking the city block by block. Every ten days or
so, the Matrix teams would announce a sweep of an additional area chosen
on the basis of citizen complaints.” Second, “Matrix also included social
service outreach. A team of two social workers, two mental health workers,
a substance abuse specialist, and two police officers roams the city trying
to coax the homeless into shelters, housing programs, or treatment for ad-
diction and mental illness” (MacDonald 1995, 79).
23. This issue has certainly been raised in the wake of the September 11, 2001,
terrorist attacks and is now subject to at least some debate. Jeffrey Rosen’s
(2001) article in the New York Times Magazine on closed-circuit television
in Britain and its panoptic features is an important prominent intervention
into the rising tide of discourse that takes “security” to be the primary is-
sue at stake in public space. The problem with much of the discussion in
the month immediately following the attack was that it, perhaps under-
standably, occurred in a vacuum. Rosen’s article was one of the few that I
have seen that drew, if only partially, on the years of research and debate
about surveillance in public space and its relationship to freedom, politics,
and the rights of the most vulnerable.
24. Let me be clear: the various ideologies through which we understand the
homeless and homelessness are indeed contradictory. On the one hand, we
need to show that homelessness is a voluntary rather than a structural con-
dition. On the other hand, we also need to show that homeless people are
not citizenly “free agents,” a position that seemingly undermines the ideol-
ogy of volunteerism. Yet, the contradiction is resolved quite simply: since
homeless people have chosen to be (or remain) homeless, they are there-
fore ineligible for legitimacy.
25. The paradigmatic accounts are Davis (1990) and Sorkin (1992).
26. For a fuller examination of the stage metaphor in landscape geography, see
Mitchell (2000, Ch. 5).
27. This point is driven home with force for the case of upper-class suburbia
outside New York by Duncan and Duncan (2001).
28. In this regard, those aspects of “bubble laws” (see Chapter 2) that establish
a safe zone around individuals as they move through cities become doubly
interesting: could it be that we are beginning to see the development of a
legal regime that takes personal sovereignty as a state of legal isolation
from all that one does not wish to encounter? It is not hard to imagine a
world in which individuals are legally granted a “sovereign space” that
moves with them through the city, keeping beggars, leafleters, and strang-
ers at bay.
29. I am certainly not implying that the fear felt by this woman was not real.
Rather, the question is whether our fear or discomfort should be allowed to
dictate the destruction of the means of survival for other people. Is the
drawing of a gun really an appropriate response to being panhandled?
30. The degree to which Sennett is describing a largely white, male, and bour-
geois ideology should be obvious. Clearly the dream of a resistance-free
public sphere for some—that is, a fully deracinated “right to the city” for
the pampered classes—has been historically predicated on a dystopian
nightmare for most.
31. Again, see the recent New York Times Magazine article by Rosen (2001) on
this point.
6
No Right to the City

Anti-Homeless Campaigns, Public Space
Zoning, and the Problem of Necessity
To what degree are the political economy, landscape, and public sphere
brutal? In Colorado, more than one homeless person dies—from expo-
sure, assault and murder, lack of medical attention, being hit by a car,
and so on—every week (Denver Post 2000b); one a week also dies in
California’s Santa Clara County (San Francisco Chronicle 2000). Rates of
death vary considerably by city. Boston averaged about one death every
2 weeks during the 1980s and 1990s, but that dropped to only four
deaths for all of 1999. City officials declared that a new concerted effort
to reduce street deaths was responsible for the decline (Boston Globe
2000). Such efforts are immensely important but rare. In “liberal,”
warmer San Francisco, some 157 people died on the streets in 1998. In
1999, that number increased to 169, continuing an almost constant rise
in homeless deaths throughout the 1990s—that is, throughout the pe-
riod of San Francisco’s much lauded Matrix program (San Francisco
Chronicle 1998, 1999).1 Such statistics are hard to come by. They are
relatively abundant for San Francisco only because a small, social-
action-oriented newspaper, the Tenderloin Times, began compiling po-
lice reports and news records. In other cities, such as Denver and
Boston, homeless advocates try to keep track of deaths and every year
sponsor a “homeless memorial day” to remember those who died on the
streets, but in most American cities the number of homeless deaths is
simply not tracked. There is no way of knowing just how many home-
195
less people die on the streets each year, but if the numbers from Boston
and San Francisco represent the range for big cities, then it must be sev-
eral thousand.
But these deaths seem almost “accidental.” Even the rash of mur-
ders of homeless people in Denver in 1999 (seven homeless people were
killed, mostly beaten to death, in 3 months) seems simply to be a trag-
edy—one to be condemned but not one for which the state is culpable.
Yet, state policy is crucial, for it is precisely America’s housing and
homeless policies—together with the regime of private property that
such policy supports—that put homeless people at risk of murder,
death by exposure, and so forth. As Laura Weir, policy director for the
National Law Center on Homelessness and Poverty, correctly notes:
“Living in public places makes them easy targets. Homeless are at in-
creased risk for violence being committed against them” (Denver Post
1999b). As the number of homeless people around the United States
continued to climb in the late 1990s, the average wait to be placed in a
public housing unit increased from 10 to 11 months between 1996 and
1998, and the wait to receive housing vouchers grew from 26 to 28
months, according to Department of Housing and Urban Development
numbers (Denver Post 1999b). Bed space in shelters in Denver, as else-
where around the country, is woefully inadequate. In the mid 1990s, ac-
cording to the Department of Housing and Urban Development, and by
the most conservative estimates, there was a nationwide shortage of at
least 425,000 beds each night in the shelter system (Foscarinis 1996).
Yet, a revivified housing program (much less a more adequate shelter
system) is not even close to being on the policy or political agenda.
“Living in a public place” is simply the only option that thousands of
people have. As Foscarinis (1996, 14) puts it, “The discrepancy be-
tween need and emergency aid means that each night at least 425,000
people have nowhere to sleep except in public places, and that each day
at least 700,000 people . . . have nowhere to be save public spaces. At
the very minimum this means that they must perform essential bodily
functions—such as sleeping, eating, bathing, urinating and defecat-
ing—in public.”
Instead of working toward a more just housing and shelter system
in the United States, the official line is more geared toward demonizing
homeless people—making homeless people seem somehow less than
human, endowed with fewer rights than those of us who live in houses.
If there has been an overriding discourse about homeless people over
No Right to the City 197
the past decade, it has been that they are nuisances (or worse) to be rid
of—pests and vermin who sap the economic and social vitality of the
cities and the nation. Consider this statement by New York Mayor Rudy
Giuliani, made in a report announcing a new policing strategy for New
York’s public spaces aimed at ridding them of homeless people: “Disor-
der in the public space of the cities” presents “visible signs of a city out
of control, a city that cannot protect its space or its children” (Giuliani
and Bratton 1994, 5, as quoted in N. Smith 1998, 3). This statement
suggests that our children, our very patrimony, are at risk, and the
spaces of the city cannot be readily defended from the internal rot that
is homelessness, a rot that must be eradicated. There is something offi-
cially organized, something deeply rooted in American urban and na-
tional policy, about the demonization of homelessness that makes their
ongoing murder, death by exposure, or lack of medical care appear to be
the result of their homelessness rather than the result of inadequate or
faulty housing, mental health, drug, and employment policies.
In June 1988 the Santa Ana, California, parks director wrote in a
memo to his staff that the “City Council has developed a policy that va-
grants are no longer welcome in the city of Santa Ana. . . . In essence the
mission of this program is to move all vagrants and their paraphernalia
out . . . by continually removing them from the places that they are fre-
quenting in the City.”2 That year, city police began a series of indiscrim-
inate sweeps of the city’s sidewalks, parks, and other public places,
sweeps that included the wholesale confiscation of personal belongings.
The Legal Aid Society and the American Civil Liberties Union began
preparing a lawsuit against the city, but this did little to halt the street
sweeps. Two years later, on August 15, 1990, city police decided to or-
ganize a “deportation” of homeless people from Santa Ana (the label
“deportation” is the police chief’s). Police arrested some 64 homeless
people for various minor crimes such as jaywalking, public drunken-
ness, urinating in public, littering, and “picking leaves from a tree” (Eng
1991) and drove them to the unused Santa Ana municipal stadium.
There they chained the arrestees to benches, some for as long as 6
hours, and wrote identification numbers on their bodies in indelible
ink. Most of the detainees were cited for littering and eventually re-
leased; four were arrested on outstanding warrants; 19 Hispanic men,
including at least one legal permanent resident, were handed over to the
Naturalization and Immigration Service and deported to Tijuana
(Gomez 1990; Simon 1995; Takahashi 1998). Despite objections from
civil rights, immigration, and legal aid attorneys that the Santa Ana po-
lice were engaging in “Nazi practices” (Gomez 1990), the chief of po-
lice, Paul Waters, promised to continue sweeping the homeless out of
the Santa Ana Civic Center and surrounding areas (Eng 1990a). He had
considerable support from the city council. As one member noted,
though he was upset that the police had not given him advance warning
of the sweep, he was still fully supportive: “My constituents would just
as soon wipe the slate clean of the homeless problem,” he told the Los
Angles Times (Gomez 1990). “I know situations where there are truly
homeless people, but these are vagrants, bums and panhandlers. . . .
They don’t truly want to help themselves. They absolutely don’t want to
stop begging, stealing, and bumming around.” And as a spokeswoman
for the Santa Ana Police Department noted, the sweep was necessary be-
cause of “a general rise in crime.” She told the Times that “there have
been 86 thefts from cars and 22 stolen cars reported this year” (Gomez
1990). Though it was only homeless users of the Civic Center who were
rounded up (many of whom were Hispanic), the spokeswoman was ad-
amant that the sweep was “not directed against the homeless or the His-
panic community.”
Even so, when the sweeps were resumed (as promised) on August
21, once again only presumptively homeless people were rounded up
(Eng and Drummond 1990). Indeed, as they later admitted in a trial, in
the original sweep the police had released two of the detainees because
they could prove a fixed address (Eng 1991). On the second sweep, 26
people were arrested on misdemeanor charges. Some 18 officers, in-
cluding several stationed on rooftops with high-powered binoculars,
took part in the operation, finding homeless people engaged in such ac-
tions as standing behind a tree with “a napkin or something in his
hands” (Eng and Drummond 1990). Together, the two sweeps detained
90 homeless people. The theory behind the detentions was that, while
not all “of the increase in crime is attributed to the homeless,” as a po-
lice lieutenant said at a briefing, “we know that some of the homeless
are . . . committing some of the crimes.” That is to say, homeless people
as a class were being rounded up because some homeless people may
have committed crimes. The appalling implications—in terms of basic
human rights, let alone the right to the city—are clear enough: whole
classes of people are being made suspect and their elimination is re-
garded as not only desirable but also socially necessary.3
The necessity of sweeping homeless people from public space was
baldly stated by Police Chief Walters: while it was “unfortunate that a seg-
ment of our society has been driven to seek shelter” in the Civic Center, if
they are allowed to remain, their presence “will not only lead to more
serious crime but also certainly contribute to the belief that democratic
government has become totally futile” because some members of the pub-
lic are allowed to engage in activities that others—those who follow
community “standards of behavior”—do not (Walters 1990, B9). Walters
based his argument on the well-known “broken windows” thesis of crimi-
nologists James Q. Wilson and George F. Kelling (1982). For Wilson and
Kelling, homeless people are little more than “broken windows” that
signal the deterioration of community and the ready availability of a
neighborhood for crime. Broken windows must be fixed if flourishing
neighborhoods are to be maintained—or so goes the theory.
The “broken windows” theory is a particularly compelling and, at
the same time, a particularly pernicious theory of public space. A major
weapon in the ongoing war against homeless people, it has come to be
taken, in many policy circles, as simple common sense (despite the fact
that it probably does not work even on its own terms: see Harcourt
2001a), and it has served to license some quite remarkable experiments
in the depletion of homeless people’s rights, especially their right to
some space in the city. In this chapter we will continue our examination
of the ongoing war against homeless people in American cities by ex-
ploring a set of variations on public space zoning that the broken win-
dows thesis and policing actions like those in Santa Ana have led to.
The aftereffects of the Santa Ana roundups of the summer of 1990 are,
in fact, quite complex, both legally and socially, and we will use the case
of Santa Ana as a continual touchstone in this examination. What will
become clear is that both in law and in practice American policy makers
are continually seeking out new ways to make sure homeless people
have no right to the city—even when the laws they construct turn out
to be as constitutionally invalid as they are morally repugnant.
“BROKEN WINDOWS”
As indicated in Chapter 1, the problem of public space is often posited

as a problem of order. Proponents of quality-of-life ordinances and po-
licing argue that “disorder” is the primary threat facing urban neighbor-
hoods. George Kelling, one of the authors of the broken windows the-
sis, writing with the legal scholar Catherine Coles, defines disorder as
“incivility, boorish and threatening behavior that disturbs life, especially
urban life” (Kelling and Coles 1996, 14). “By disorder,” they continue,
we refer specifically to aggressive panhandling, street prostitution, drunk-

enness and public drinking, menacing behavior, harassment, obstruction
of streets and public spaces, vandalism and graffiti, public urination and
defecation, unlicensed vending and peddling, unsolicited window wash-
ing of cars (“squeegeeing”), and other such acts. (p. 15)
Each of these may already be outlawed misdemeanors or petty offenses,

they note, but they are not, in their estimation, policed stringently
enough, either by the police themselves or less formally by neighbor-
hood groups. This is particularly problematic, they argue, because the
failure to guard against such disorder is the equivalent of leaving a
broken window—or a whole neighborhood of broken windows—
unmended.
James Wilson and George Kelling (1982) argue in their original
statement of the thesis that even a single broken window in an urban
neighborhood indicates a lack of care about urban space that invites
other, more serious, criminal behavior. A single broken window, they ar-
gue (31), indicates that a building and surrounding property will “be-
come fair game for people out for fun and plunder.” Such a broken win-
dow is “criminogenic,” as Kelling and Coles (1996, 15) term it. But the
key to this argument is that “broken windows” are only a metaphor—
and not for urban disinvestment. Rather, they are a metaphor for “disor-
derly behavior.” Make no mistake, proponents of the broken windows
thesis are very clear about what—or rather who—needs to be policed
and subject to strict control. “The citizen who fears the ill-smelling
drunk, the rowdy teenager, or the importuning beggar,” Wilson and
Kelling (1982, 29) write,
is not merely expressing his distaste for unseemly behavior; he is also giv-
ing voice to a bit of folk wisdom that happens to be a correct generaliza-
tion—namely, that serious crime flourishes in areas where disorderly
behavior goes unchecked. The unchecked panhandler is, in effect, the first
broken window. . . . If the neighborhood cannot keep a bothersome pan-
handler from annoying the passers-by, the thief may reason, it is even less
likely to call the police and identify a potential mugger or to interfere if a
mugging takes place. (emphasis added)
Later (35) they argue that “arresting a single drunk or a single vagrant
who has harmed no identifiable person seems unjust . . . [but] failing to
do anything about a score of drunks or a hundred vagrants may destroy
an entire community” (emphasis added). That is to say, the more people
there are who are harming no identifiable person but merely engaging in
what the authors declare to be “disorderly behavior,” the more just is
the engagement in an unjust act, for “disorderly behavior” in and of it-
self poses a “grave threat . . . to our society” (Kelling and Coles 1996,
7). Indeed, Wilson (1996, xiv) has even formulated a new Malthusian
law to describe this threat: “As the number of unconventional individu-
als increases arithmetically, the number of worrisome behaviors in-
creases geometrically.” So now the threat is not even disorder, but only
“unconventionality,” and the “harm” (though unidentifiable) is creating
“worry,”4 and on this basis authorizing the police to push the homeless
along, giving Business Improvement Districts the power to “sweep” the
streets of the homeless, and writing laws that make it illegal for certain
individuals to sit, rest, sleep, or even eat are all justified.5 “Broken win-
dows,” in short, is a policy of “zero tolerance” for behaviors and actions
deemed disorderly or “worrisome.”
Even if read generously, the logic of the “broken windows” thesis is
incredible. “Untended disorderly behavior,” Kelling (1987, emphasis in
original) has written, “communicate[s] that nobody cares (or that no-
body can or will do anything about the disorder) and thus [may] lead to
increasingly aggressive criminal and dangerous predatory behavior.”
That is to say, avowedly innocent people need to be targeted by the po-
lice, the law, and the “community” because of the potential in a particu-
lar place for other people to commit crimes.6 At its boldest and baldest,
this defense of punitive measures against the homeless asserts that the
aesthetics of place outweigh other considerations, such as the needs of
homeless people to sleep, to eat, or to be (Waldron 1991).7 As law
scholar Steven Paisner (1994, 1272) argues in the midst of an attempt to
develop constitutionally valid means of ridding city streets of homeless
people, “the most serious of the attendant problems of homelessness is
its devastating effect on a city’s image” (emphasis added), and not, pre-
sumably, such attendant effects as ill health, mental illness, malnutri-
tion, or death from exposure. Robert Tier (1998) of the American Alli-
ance for Rights and Responsibilities and the Center for Livable Cities
draws heavily on Kelling and Coles (1996) to make the same point, ar-
guing that the presence of homeless people on city streets or in parks

“affect[s] the quality of urban life, the general feeling of comfort, aes-
thetics, security, and freedom people should have in their urban public
spaces” (Tier 1998, 258).
Advocates of the “broken windows” thesis readily admit that there
are constitutional problems with singling out classes of people and
criminalizing them for their class status.8 It is impermissible, for exam-
ple, to outlaw panhandlers as a class, though some forms of panhandling
as a behavior can be made illegal. Anti-camping ordinances have been
defended on the grounds that they outlaw a specific action—sleeping in
public—rather than a status (being without a home). Opponents of
such laws have contested them by arguing that homeless people have no
choice but to sleep in public (or to trespass, which is illegal), that sleep-
ing is necessary to survival, and hence anti-camping ordinances effec-
tively target a status (homelessness).9 Proponents of the broken win-
dows thesis and other forms of public order policing counter that the
behaviors they seek to criminalize are, in fact, voluntary.
George Kelling and Catherine Coles (1996), in fact, agree that
homelessness is a status or condition. They write: “The problem is not
the condition of being homeless or poor; it is the behavior of many per-
sons, some homeless and others not, who violate the laws of the city
and state” (40, emphasis in original).10 They go on to argue that “using
‘homeless’ as a euphemism for a panorama of antisocial and/or unlawful
activities, and for ‘the poor,’ gives all who are poor a bad name, and ig-
nores the reality that most poor are law abiding, embody a sense of de-
cency and respect for others, and take responsibility for their own obli-
gations” (65). To make their argument, Kelling and Coles quote a
particularly odious passage from Baum and Burnes’s11 (1993) analysis of
the issues at stake in a celebrated court case in San Francisco concern-
ing the rights of the homeless (Joyce v. San Francisco 1994), a passage
that in fact undermines their very argument:
By perpetuating the myth that the homeless are merely poor people in
need of housing, . . . advocates reinforce and promote the most pernicious
stereotypes about poverty in America. The vast majority of poor people in
America are not homeless. Poor people do not live on the streets, under
bridges, or in parks; do not carry all of their belongings in shopping carts
or plastic bags; do not wear layers of tattered clothing and pass out or
sleep in doorways; do not urinate or defecate in public places; do not sleep
in their cars or encampments; do not harass or intimidate others; do not
ask for money on the streets; do not physically attack city workers and res-
idents and do not wander the streets shouting at visions and voices. . . .
(as quoted in Kelling and Coles 1996, 65)
On the one hand, then, Kelling and Coles admit that homelessness is a
“status” or “condition,” but on the other hand they rely on a definition
of homelessness (the implication that Baum and Burnes are in fact de-
fining homelessness in this passage is obvious enough) that sees it, a
priori, as criminal or antisocial. The homeless by this definition are not
law-abiding and are worthy of very little empathy. Indeed, in this tell-
ing, homelessness—or housing—per se is not the issue. In Baum and
Burnes’s (1993, 2) words, “emerging research” has indicated that per-
haps as much as “85 percent of all homeless adults suffer from chronic
alcoholism, drug addictions, mental illness, or some combination of the
three, often complicated by serious mental problems” (quoted in
Kelling and Coles 1996, 66). What neither Baum and Burnes nor
Kelling and Coles go on to do is make the obvious point: just as the ma-
jority of poor people are not homeless, neither are the majority of men-
tally ill, drug-addicted, alcoholic, or otherwise disabled people home-
less. Making that point would entirely undermine the argument that
both sets of scholars are seeking to make—namely, that the issue at
stake on the city streets is not homelessness, but behavior. For, if that
further obvious point were made, then we would have to admit that
what is at stake is precisely homelessness, even if this is indeed linked to
numerous other social and personal problems.12
Nonetheless, assuming that behaviors associated with homeless-
ness are voluntary pays dividends: it allows for such behavior to be, or
to remain, criminalized. Making this assumption further allows Kelling
and Coles (222), and by extension those jurisdictions that adopt “order-
maintenance” policing, to claim that “although order maintenance ac-
tivities will put police into contact with homeless and poor people,
those who are emotionally disturbed, youths, and substance abusers,
order-maintenance efforts are not intended to solve society’s problems
regarding these populations.” There are two problems with this argu-
ment (besides its corollary demonization of all “youths”), and with bro-
ken windows policing targeted at street people more generally. First, the
distinction between status and behavior is often a false one by necessity.
The second problem is that broken windows policing has de facto be-
come the only attempted solution to the problem of homelessness in the
United States. Returning to the streets and courthouses of Santa Ana

will allow us to explore both these points in more detail.
SANTA ANA’S ANTI-CAMPING ORDINANCE

AND THE PROBLEM OF NECESSITY
Santa Ana’s Police Chief Paul Walters (1990) saw his roundup of home-
less people as, in his words, a means of “fixing [the] public’s broken
windows,” but others were deeply appalled by the action. Almost imme-
diately, the Legal Aid Society and the American Civil Liberties Union
sued to halt the police department from indiscriminately detaining and
“deporting” homeless people from the Civic Center. It was not their
first suit against the city. In 1988 there were probably between 5,000
and 6,000 homeless people in Orange County, of whom perhaps half
lived in the downtown Santa Ana area (Schwartz and Kurtzman 1988,
I3, cited in Takahashi 1998, 156).13 Santa Ana is the county seat, and
thus numerous social service agencies are located there. Throughout
the 1980s Santa Ana was engaged in redeveloping its Civic Center area.
This, coupled with the sense that the municipality of Santa Ana was
shouldering a disproportionate share of the burden for Orange County’s
homeless, led the city government to institute a series of police sweeps
in which homeless people were either arrested or “moved along” and
their belongings were confiscated and destroyed (Takahashi 1998, 156–
157). The ACLU and the Legal Aid Society, representing affected indi-
viduals, sued, and in early 1990 won a settlement from the city award-
ing 17 of those affected by the sweeps $50,000 each. Homeless people,
according to the settlement, would still be subject to sweeps, but now
their belongings would be stored as lost-and-found items rather than
destroyed (Eng 1990a).
Six months later the city of Santa Ana made good on its promise to
continue making sweeps by embarking on its infamous deportation. In
addition to filing a new suit, the Legal Aid Society and the ACLU prom-
ised to seek a jury trial for each of the individuals arrested. They re-
ceived support in this action from the bar association (Eng 1990b). By
October 1990, attorneys from the Legal Aid Society of Orange County
and the Orange County Bar Association had secured another agreement
from the city. Among its 22 points, the agreement “specifically pro-
hibit[ed] the city from taking ‘concerted action to drive homeless indi-
viduals from Santa Ana’ and barred officials from marking the bodies of
people charged with minor offenses for identification” (Johnson 1990,
B12). Simultaneously, the deputy public defender representing the ar-
rested homeless persons refused a city plea bargain that would have al-
lowed them to plead guilty and pay fines or serve up to a day in jail. The
homeless defendants argued that their right to a trial by jury—a trial in
which the very legitimacy of the sweeps and deportations could be
questioned—was too important to be bargained away (Johnson 1990).
In February 1991, a municipal court judge threw out charges
against 22 of the arrested, finding that the Santa Ana police “deliber-
ately and intentionally implemented a program which targeted those
persons living in the Civic Center, the homeless” (quoted in Eng 1991
A1). Even though it was only homeless people who were rounded up
and charged with crimes such as littering (in the case of one, for drop-
ping a cigarette butt on the ground), Chief Walters again insisted that
his department was not targeting the homeless but only those who vio-
lated the law (Eng 1991). A deputy district attorney reiterated that such
arrests were vital, since the city was insistent on applying “the broken
window theory” (Eng 1991, A1). The judge in the case dismissed such
reasoning: “If the Civic Center is to be compared to a house and the
broken windows to minor offenses, all broken windows must be re-
paired. In this house, it is apparent that only those consisting of plain
pane glass were handled, while those of bevel or stain glass were not”
(quoted in Eng 1991, A1). As the judge made plain, the arrests were
conducted for the sole reason of “harass[ing] and intimidat[ing]” the
homeless. Eventually the homeless won a $400,000 settlement from the
city.
While the chief of police asserted that his department was not tar-
geting the homeless, city officials continued to search for ways to push
homeless people out of the Civic Center (Takahashi 1998, 157–165).
The tool they turned to was an anti-camping ordinance, which they
hoped might prove both more effective and cheaper than the previous,
more heavy-handed, approach had proved.14 The first anti-camping or-
dinance, passed in August 1992, made it illegal to sleep in a sleeping
bag or blanket or to store belongings on public property, and specified a
sentence of up to 6 months in jail for violators. Apparently the ordi-
nance also asserted that “homeless people were to clear out of town by
sunset” (Di Rado 1994, A27, quoted in Takahashi 1996, 158). Eleven
months later, the 4th District Court of Appeals in Santa Ana temporarily
enjoined the city from enforcing the anti-camping ordinance, writing

that it was too “vague, impose[d] class-based restrictions on the ability
to live and travel, and constitutes cruel and unusual punishment” (Di
Rado 1994, A27, quoted in Takahashi 1998, 159).15
The city responded 2 weeks later by reviving the 1872 California
vagrancy law, but was soon restrained from enforcing this as well.16
Finally, the city wrote an anti-camping ordinance based on a U.S. Park
Service ordinance that had already been upheld by the U.S. Supreme
Court. One of the key aspects of this law was that it would govern only
the Civic Center and not the city as a whole (Takahashi 1998, 160), a
geographical restriction that is crucial to the law’s validity.
Anti-camping ordinances have become a favored tool of cities seek-
ing to remove homeless people from public spaces. These laws typically
make it illegal to sleep or “lodge” in any public place, either within a ju-
risdiction as whole or, as with the third Santa Ana law, in a specified
area. Many have specific exemptions for occasional dozing. Santa Ana’s
law referred specifically to camping, rather than sleeping, making it
“unlawful for any person to camp, occupy camp facilities, or use camp
paraphernalia” in public spaces.17 The only anti-camping ordinance to
be examined by the Supreme Court was that of the National Park Ser-
vice (NPS). The NPS had outlawed camping in a number of Washing-
ton, DC, parks, including Lafayette Park across the street from the
White House. In the early 1980s the Community for Creative Non-
Violence (CCNV), a DC-based homeless advocacy organization, defied
the ban as a specific political protest against Reagan administration pol-
icies that its members perceived to be leading to the rise of homeless-
ness. After homeless protesters were arrested, CCNV contested the anti-
camping ordinance on First Amendment grounds, claiming that their
Lafayette Park encampment was a form of speech that should be
protected. The Supreme Court did not deny that the encampment and
the conduct of the homeless people had “expressive content” and thus
was subject to increased First Amendment scrutiny. Nonetheless, the
Court upheld the anti-camping ordinance, in part because camping was
permitted in other parks, thus allowing homeless people to legally make
their protest there.18 Restricting camping in Lafayette Park was, in the
eyes of the Court, a reasonable “time, place, and manner” restriction on
public protest, and it was one that serves a legitimate government inter-
est (the maintenance of the park for other uses) (Clark v Community for
Creative Non-Violence 1984).19 Santa Ana took its cue from this case and
wrote its law so that it only covered a portion of the city, presumably
leaving open outlying public areas for sleeping.
Even so, the law was promulgated within a quite complex and con-
fused judicial milieu.20 Around the time the Santa Ana City Council was
crafting its third anti-homeless law, a federal court in Miami handed
down a decision in a case similar to those already settled by Santa Ana.
In Miami a group of homeless people contested the city’s policy of ar-
resting (or simply harassing) homeless people for engaging in what the
court called “essential, life-sustaining acts,” including sleeping in pub-
lic, standing around, and eating (Pottinger v. City of Miami 1994, 1554).
The Court found that, since the number of shelter beds was not even
close to sufficient for the number of homeless people in the city, home-
less people “simply have no place to go” but public space (Pottinger
1994, 1554). Therefore, the Court reasoned, arresting or harassing
homeless people for engaging in necessary acts, which necessarily had
to occur in public, constituted punishment for a status (the status of
homelessness) and thus constituted cruel and unusual punishment as it
had been defined in a celebrated 1962 Supreme Court decision (Robin-
son v. California 1962). As a result, the Court ordered the city of Miami
to create two “safe havens” in which the city was enjoined from “arrest-
ing homeless individuals who are forced to live in public for performing
innocent, harmless, inoffensive acts such as sleeping, eating, lying
down or sitting . . . ” (Pottinger 1994, 1584).
Meanwhile two other cases were working their way through federal
courts, each of which was decided in 1994. In Dallas, a federal district
court once again found that the number of shelter beds was inadequate
to the demand and hence that a prohibition against sleeping in public
punished a status rather than an act. Indeed, the court held that the
Dallas anti-camping ordinance punished not just the status of home-
lessness but also the “status of being”: “Because being does not exist
without sleeping, criminalizing the latter necessarily punishes the
homeless because of their status as homeless, a status forcing them to be
in public” (Johnson v. City of Dallas 1994, 350).21 By contrast, in San
Francisco, a federal district court held that anti-homeless laws did not
punish status. This case tested the validity of San Francisco’s Matrix
program and, so, touched on a whole suite of anti-homeless laws and
police practices. The judge in the San Francisco case held that homeless-
ness was not a status (and so laws regulating the behavior of homeless
people were not cruel and unusual punishment) because homelessness
was not an “immutable” condition. The judge held that the presence of
the characteristics that defined the status under question should be
present “at birth” (like gender or race) or be truly out of the control of
the individual (Joyce v. San Francisco 1994). In this latter category were
such things as illness and drug addiction (following the Robinson deci-
sion). While drug addiction might seem an odd characteristic to accord
“status” (had the Supreme Court not already done so), and an even
harder characteristic to find substantially different from homelessness,
the judge held that it was indeed different from homelessness since a
homeless person “immediately loses her ‘status’ when provided hous-
ing” (see J. Smith 1996, 327) while an addict always remains an addict
(though perhaps a recovering one). The presumed “status” of homeless-
ness, therefore, was neither immutable nor long-lasting.
Into this milieu the Legal Aid Society and the ACLU launched their
case against the Santa Ana ordinance. In the first instance the homeless
and their advocates won. Following the Robinson Doctrine, the Califor-
nia Court of Appeals restrained the city from “enforcement of the ordi-
nance in its entirety” (Tobe v. Santa Ana 1994, 387; J. Smith 1996, 324).
The city appealed to the California Supreme Court, which reversed the
appeals court decision. But it did so not on the Eighth Amendment
grounds of the Robinson Doctrine but rather because it found that law-
yers for the homeless had “failed to perfect an ‘as applied’ challenge”
(Tobe v. Santa Ana 1995, 1150; J. Smith 1996, 324). The court therefore
tested the constitutionality of the ordinance “on its face,” which means
that it tried to determine whether the ordinance was constitutional in
and of itself rather than in how it was as applied to a specific class of
people—the homeless (J. Smith 1996, 324).
In making its decision, however, the California Supreme Court left
open the possibility of a new kind of defense of the “rights” of homeless
people. The court suggested that a “defense of necessity” might be
raised if for some of the homeless “violation of the ordinance is invol-
untary” (Tobe v. Santa Ana 1995, 1155; Fasanelli 2000, 337). Against
“persons who . . . have no alternative to ‘camping’ or placing ‘camp par-
aphernalia’ on public property,” the Court argued, the ordinance should
not be enforced (Tobe v. Santa Ana 1995, 1155).
In one of the original cases that were brought together as Tobe v.
Santa Ana, James Eichorn was charged in January 1994 with violating
Santa Ana’s anti-camping ordinance. Unlike the rest of his codefend-
ants, Eichorn insisted that his case go to trial. The trial court ruled that
the necessity defense was unavailable because Eichorn had not shown
that he broke the law only to “avoid a ‘significant, imminent evil’ ”
(Fasanelli 2000, 345, quoting In re Eichorn 1998, 536). In response to
the Tobe decision, a California Court of Appeals found that Eichorn
should indeed have been allowed to assert the necessity defense in his
original trial, arguing among other things that “by sleeping in the civic
center, the defendant may have been avoiding the ‘significant evil’ of
sleep deprivation” (Fasanelli 2000, 346, quoting In re Eichorn 1998,
539). But this finding in turn rested on the fact of a significant shortage
of shelter or other housing in Santa Ana. In 1993 the city provided only
118 permanent shelter beds plus an additional 125 during the winter—
all for a population of perhaps 1,500 homeless people in the city
(Fasanelli 2000, 347).22 On the night that Eichorn was arrested, the ar-
mory, where the winter beds were located, was filled beyond its capacity.
The appeals court in In re Eichorn, drawing on facts such as these, made
it clear that necessity is a reasonable justification for violating “quality of
life” laws.
As Antonia Fasanelli (2000, 350) concludes, “In other cities, where
courts have upheld anti-camping and sleeping ordinances as constitu-
tional, the necessity defense will [now] be available to homeless people
under the Tobe/In re Eichorn theory if the violator shows that more
homeless people than shelter spaces exist and there is a lack of adequate
income to pay for housing.” If the cities surveyed by the National Law
Center on Homelessness and Poverty (NLCHP 1995; 1997) are even
close to being representative, then there is not a medium- or large-sized
city in the United States where this is not the case.23 “Fixing Broken
Windows” in the way that Kelling and Coles advise, then, can be seen
even more clearly as a punitive policy directed against a despised class
rather than anything like a reasonable urban policy.
ANTI-HOMELESS CAMPAIGNS AND THE CONTENT

OF CONTEMPORARY URBAN JUSTICE
There is something exceedingly perverse in the above discussion, some-

thing easily lost as the details of specific cases are outlined—namely,
that homeless people and their advocates are driven, in the current ur-
ban context, to argue for the right to sleep in public, to lie on sidewalks,
to beg on the streets, or to shit in alleys. These are pretty mean, pretty
shriveled, rights. As an attorney for homeless people in New York City

remarked after winning an early decision (later overturned) that se-
cured the right of beggars to panhandle in New York City subways and
stations: “It’s hard to get real excited about winning the right to beg”
(New York Times 1990, B1). In that light, take a moment to consider just
what the California Supreme Court achieved as it adjudicated a con-
certed campaign by the city of Santa Ana to rid itself of homeless
people: it opened the door for people to show that, in the normal course
of events, they have no choice but to break laws that most of us would
find perfectly reasonable (such as not camping in a civic center). The
normal state of affairs in the American city is such that one can raise the
question as to whether some number of residents have no choice but to
live in the open, to satisfy all their bodily needs in public, to go about
begging. It has forced us to map the city to see if there are some few ar-
eas in which people have the right not only to sleep or eat, but just to
live, and to live a life defined by physical and mental illness and the
constant threat of death by exposure or at the hands of thugs. It has
asked us to scour the city to see just how close we are to the “libertarian
paradise” that Waldron (1991) described, the paradise in which every
space is governed by something like a private property rule such that
there simply are no public spaces in which those without access to pri-
vate property, or its corollary, highly policed public space, simply can-
not be.
Some judges—the California Supreme Court justices who left open
the door of necessity among them—have recognized, at least to some
extent, that such a “paradise” is flawed at the most basic level of human
rights. Traveling the farthest along this road was the federal district
court in Miami (cited above) that ruled that the city had to establish
two “safe havens” on public property where homeless people could stay
free from the fear of harassment by the police. As with the California
court, this ruling produces a pretty mean notion of urban justice, one
that does not even contemplate ordering a decent housing program. Yet,
even so, it nonetheless announces the limits of the broken windows the-
sis and public space policing more generally by creating a ghetto for
homeless people in which at least a few shreds of their rights will be
maintained, even if, within the larger context of the city as a whole,
those rights are pretty much abandoned.
The Miami court’s order to create safe havens, like the California
court’s recognition of the necessity defense, in essence proposes a geo-
graphical solution for what is a social—and political-economic—prob-

lem. In the case of Santa Ana, which carefully wrote its anti-camping
ban so as to cover only a portion of the city, it will not be hard to argue
that, in fact, Eichorn and others could have slept somewhere else, some-
where outside the civic center, and hence the necessity of sleeping in
the civic center itself cannot be shown. Picking up on the geographical
logic of recent court cases, Yale legal scholar Robert Ellickson (1996)
has influentially argued that, rather than outlawing unwanted behaviors
altogether, cities should instead develop a process of “public space zon-
ing.” It is worth looking at Ellickson’s argument in some detail for two
reasons. First, it offers compelling insight into how regulating space—
creating “proper” urban geographies—can be easily substituted for con-
certed progressive policies designed to attack social problems and to ex-
pand the content of urban social justice. Second, it provides insight into
how “broken windows”-style regulation of urban space is likely to de-
velop in the near future. It provides insight into the new regime of or-
der—and hence the new regime of rights—that is likely to mark the
American city of the early 21st century.24
PUBLIC SPACE ZONING
Robert Ellickson is perhaps most noteworthy for his book Order Without
Law: How Neighbors Settle Disputes (1991), in which he makes the argu-
ment that “informal” controls on social order are often more effective
than legal ones. Ellickson is leery of the state, particularly at the na-
tional scale but to some extent at the more local scale, as well. Property
owners, he asserts, have a greater stake in preserving qualities and val-
ues than do state bureaucracies. Given this perspective, he holds that
the management of land needs to vary spatially in accordance with
neighborhood, city, and state “norms,” and that it should not be subject
to universalizing federal constitutional oversight. In 1996, relying ex-
plicitly on the “broken windows” thesis, Ellickson extended his argu-
ment to the management of urban public space.
In what has since become an influential and heavily debated article,
“Controlling Chronic Misconduct in City Spaces: Of Panhandlers, Skid
Rows, and Public Space Zoning” (1996),25 Ellickson adheres to Kelling
and Coles’s (1996) injunction that questions of order in public space
must be disconnected from issues of homelessness—by sheer force of
will if in no other way. Hence, though he contradicts himself in several

places in the article (by pointing out, for example, that street people are
in fact destitute and quite often homeless), Ellickson argues that
“homelessness” is “an unduly ambiguous word” that “implies policy so-
lutions that are inapt” (1996, 1192) and that “tends to entrap [homeless
people] in a marginal status” (1193). “Homelessness” is the wrong
descriptor because what is at stake, he argues, is not poverty or housing,
but what he calls “chronic misbehavior.” “Chronic misbehavior” on city
streets needs to be understood as the product of two types of people:
those Ellickson calls “bench squatters” (those who “monopolize” park
or other benches and sidewalks with their belongings and bodies, be
they homeless “bag ladies” or “Proust readers” [1184]); and those he
calls “chronic panhandlers” (those who beg in the same place day after
day). Ellickson asserts that his policy proposals target these forms of
street conduct and do not address the status of homelessness.
To the argument that anti-homeless laws target activities that
homeless people have no choice but to engage in—that is, they target
the involuntary status of being homeless rather than the specific acts
they purport to regulate—Ellickson responds that “to treat the destitute
as choiceless underestimates their capacities and, by failing to regard
them as ordinary people, risks denying them full humanity” (1187).
Begging, therefore, needs to be understood as “an option, not an inevi-
tability” (1187). Indeed, according to Ellickson, beggars and bench
squatters are more free than the rest of us because, not “living lives
structured around families and employers,” street people have more
time to “individually craft a daily routine” (1187) and “move from place
to place” (1188).26 Ellickson even argues that ordering a mentally ill
woman “squatting” on a bench to “move along” “might actually en-
hance the liberties of the mentally ill” because “she herself might prefer
that outcome to bearing the risks of involuntary confinement” (1189)
in jail or in an institution.27 This argument is best read perhaps in light
of an earlier article by Ellickson (1990) in which he argued that provid-
ing decent shelter to homeless people actually causes an increase in
homelessness.
Regulating Public Space: Norms and Harms

We have already seen that proponents of the “broken windows” thesis
have had a difficult time deciding whether “chronic misbehavior” actu-
ally rises to the level of an identifiable “harm.” Ellickson avows that it

does but that the degree of harm may vary across urban space. He as-
serts, therefore, that cities need to establish a program of public space
regulation that does not rely on the universalizing tendencies of either
law or rights, arguing that these “succumb to the notion that all open
access spaces have to be governed by an identical regulatory regime”
(1996, 1219, n. 301) and thus are inadequate to the differing needs of
communities. Most cities’ regulations are spatially insensitive: “A con-
stitutional doctrine that compels a monolithic law of public spaces,”
Ellickson writes, “is as silly as one that would compel a monolithic
speed limit for all streets” (1247). Instead, he suggests that a spatially
variable regime of urban public space zoning needs to be developed. A
“city’s code of conduct,” he argues, “should be allowed to vary spa-
tially—from street to street, from park to park, from sidewalk to side-
walk” (1171–1172). Optimally, this zoning should be “informal,” that
is, developed by the “community” as it establishes “norms” of behavior
for people who use public space in its midst (1222–1223). This infor-
mal zoning should then be maintained by “trustworthy police officers”
(1173, 1245) who enforce the norms the community has established.
The second-best solution is for cities to create a formal system of public
space zoning that allows for different sorts of behavior—and perhaps
even some degree of “misconduct”—in the various public spaces of the
city (1246).
Ellickson’s target, the thing that needs policing, is “chronic street
nuisance,” which he defines as “behavior that i) violates community
norms governing conduct in a particular public space ii) over a pro-
tracted period of time iii) to the minor annoyance of passers-by”
(1175). That is, he is interested in regulating behavior that even does no
more than create a sense of “minor annoyance”—perhaps just a cracked,
rather than a broken, window. But, for Ellickson, such cracked windows—
such bench squatting and chronic panhandling—represent a set of real
“harms” (1177) to the general community. First, and circularly, annoy-
ing street behaviors may “trigger broken windows syndrome . . . sig-
nal[ing] a lack of social control” (1177). Second, and more specifically,
Ellickson notes that since many public authorities have taken to elimi-
nating or redesigning public benches to discourage “bench squatting,” a
“proliferation of bench squatters . . . tends to lead to the elimination of
amply sized benches” from public space (1178, n. 50). (The direction of
causality is not just insulting; it is symptomatic of a whole mode of rea-
soning concerning the homeless.) Third, Ellickson suggests that pan-

handling “worsen[s] race relations in cities where panhandlers are
disproportionally black” (1181). (He also makes the appalling argu-
ment that one of the primary results of the civil rights movement was to
make it easier for African Americans to live as homeless people on
downtown streets.28) And fourth, according to Ellickson, “begging sig-
nals an erosion of the work ethic,” a “harm” that “all human societies”
attempt to remedy (1182).
Given these “harms,” Ellickson proposes the following rule: that “a
person perpetrates a chronic street nuisance by persistently acting in a
public space in a manner that violates prevailing community standards
of behavior to the significant cumulative annoyance of persons of ordi-
nary sensibilities who use the same spaces” (1185). How should “com-
munity standards” be determined? Here Ellickson turns to Jane Jacobs:
“The first thing to understand is that the public peace—the sidewalk
and street peace,” Ellickson quotes Jacobs (1961, 31–32) as saying, “is
not primarily kept by the police, necessary as the police are. It is kept
primarily as an intricate, almost unconscious network of voluntary
controls and standards among the people themselves and enforced by
the people themselves” (Ellickson 1996, 1196). Jacobs’s argument
serves Ellickson well because he strives to show that what needs to be
instituted are putative community norms. Yet since, as we will see,
Ellickson has a remarkably truncated notion of who belongs in a com-
munity, he quickly discards Jacobs’s argument in favor of promoting the
police themselves as the primary guarantors of public order (1173,
1200–1201, 1208–1209, 1245). But his point in invoking Jacobs is not
at all to debate the merits of city policing; rather, it is to deflect atten-
tion from that issue and to instead invoke a nostalgic vision of the city
that serves as the template for the sort of public space zoning he wants
to promote.
Skid Row: Ellickson’s Nostalgic City

This nostalgic vision is of a time when almost all American cities had
within them what Ellickson calls “informally policed Skid Rows” (1996,
1208): the 1950s. In Ellickson’s view skid row in the 1950s was a place
“along with closely related Red Light Districts . . . where a city relaxed
its ordinary standards of street civility” (1208). This is a quite partial
view of skid row—the bulk of the evidence suggests that it was always a
heavily and stringently policed place (Anderson 1923; Bahr 1970, 1973;
Bittner 1967; Blumberg et al. 1978; Foote 1956; McSheehy 1979;
Wallace 1965; J. Wilson 1968)—but it does allow Ellickson (1996) to
make a curious, if wholly unsupportable, point that will become central
to his whole argument—namely, that skid row not only was the appro-
priate home for alcoholics and the elderly poor, but that it made it pos-
sible for the police to act benevolently in their guaranteeing a diversity
of social orders (1172, 1202–1209). Here is what Ellickson says:
In Skid Row . . . moderate public drunkenness was likely to be tolerated,

29
not only by the other down-and-out residents, but also by the police. By
contrast, the same level of inebriation elsewhere in downtown was much
more likely to get an alcoholic in trouble. In the 1950s, a cop on the beat
might unhesitatingly tell a “bum” panhandling or bench squatting in the
30
central business district to “move along.” A bum on a Skid Row sidewalk
would never hear this message because he was exactly where the cop
31
wanted him. In this way, the 1950s police officer helped to informally
zone street disorder into particular districts. (1208–1209).
Ellickson’s own sources directly contradict him, showing how the police
did in fact make frequent arrests on skid row, and told the men and
women there to “move along” (Foote 1956; Schneider 1986; J. Wilson
1968). And other sources, taking the ethnography of skid row into the
1970s (a period in which, Ellickson avers, policing of skid row was un-
duly hampered by constitutional restrictions on police power), show
that the police could be impressively brutal in their use of arrest as a
disciplinary mechanism on skid row (McSheehy 1979). But, never
mind.
For Ellickson (1996), it is not the brutal policing of homeless men
that was a problem; he simply dismisses that on the grounds that it was
less brutal on skid row than in other parts of the city (1208–1209, n.
232–234). Rather, the “constitutional revolution” (1209) of the 1960s
and 1970s—that period in which vagrancy laws were found unconstitu-
tionally vague and status crimes were decriminalized—had the effect of
“nationalizing” laws concerning street disorder (1209). That is, judicial
liberalization and the recourse to constitutional law to litigate arrests
for public drunkenness, vagrancy, loitering, and the like applied a single
standard of justice across all the urban spaces of the country. Such a
“nationalization,” in Ellickson’s estimation, created a system that was
“centralized and inflexible” (1213), making the sort of “informal zon-
ing” that he thinks marked the 1950s skid row impossible (which, of
course, was precisely the point). Thus, and also because so many
churches gravitated to the suburbs (1216), skid row fell into decline,32
and the visible evidence of the “down-and-out” life diffused across the
other spaces of downtown: “Street people who had previously been in-
formally confined to Skid Row were now able to make chronic use of
the busiest downtown areas. Many of them did” (1216).
Zoning Public Space

Ellickson’s (1996) nostalgia leads him to an intriguing proposal, one
that, taken at face value, seems to argue for a return of skid row (and
homeless people’s sequestration there). However, as interesting and im-
portant as it is, it is a proposal that simply should not be taken at face
value, since it is, as we will see, thoroughly disingenuous. Ellickson
proposes that cities should zone their public spaces into three catego-
ries: red, yellow, and green (1220–1222). In red zones, which he argues
should constitute perhaps 5% of a downtown area, “normal standards
for street conduct would be significantly relaxed” (1221). “In these rela-
tively rowdy areas,” Eillickson (1221) writes, “a city might decide to
tolerate more noise, public drunkenness, soliciting by prostitutes, and
so forth.” Red zones would serve as “safe harbors for people prone to
engage in disorderly conduct” (1221). Yellow zones, covering about
90% of downtown, should “serve as a lively mixing bowl” (1221). Here,
“the flamboyant and the eccentric” (1221) would be allowed in, just so
long as they did not overstay their welcome. Here too “chronic (but not
episodic) panhandling and bench squatting . . . would be prohibited”
(1221). Finally, green zones, occupying the final 5% of downtown
space, would become “places of refuge for the unusually sensitive: the
frail elderly, parents with toddlers, unaccompanied grade-school chil-
dren, bench-sitters reading poetry” (but presumably not Proust) (1221).
Even episodic panhandling and bench squatting would be outlawed. In
essence, then, Eillickson proposes to codify space such that at the scale
of the city, a mix of “land uses” would be tolerated, and at the scale of
the downtown 90% of the area would serve as a “lively mixing bowl” of
peoples and activities, all overseen by a benevolent police force working
to maintain the “community norms” of each area.
“Community norms” are the key:33 the determination of red, yel-
low, and green zones, according to Ellickson, should be based on what a
community wants. Zoning of public space should be done informally by
“members of a close-knit group who repeatedly make use of open access

public space” (1222). These members should “enforc[e] social norms to
deter an entrant from using [public space] in a way that would unduly
interfere with the opportunities of other members” (1222). Such com-
munity members, according to Ellickson, are particularly adept at
“recogniz[ing] the crazy-quilt physical character of urban spaces and
the myriad demands of pedestrians [and they] tend to vary their infor-
mal norms from public space to public space” (1222). In this effort,
they are aided by the police, who work to enforce these varying commu-
nity norms (1223). And over time, Ellickson hopes, residents and
homeless people alike will internalize these rules, and the norms of the
different zones will become second nature (1225–1226). Yet, even so,
Ellickson recognizes that informal zoning might not be effective. Though
he does not say it outright, it is clear that Ellickson is concerned that
“chronic panhandlers” and “bench squatters” could be taken for mem-
bers of the “close-knit group”—those who repeatedly make use of pub-
lic space—and so he suggests that city governments should be given
leeway to formally zone public space into red, yellow, and green zones,
complete with signs listing applicable rules.
Despite this worry about the efficacy of informal zoning, Ellickson
still puts his faith in “the community” for whom public space will be
policed. Yet—and this is crucial—Ellickson never explicitly defines
community. What emerges, in the course of his long law review article,
however, is that this “community” simply does not include homeless
people. They are in no sense considered to have any a priori rightful
claim to the use of streets and parks: they are figured only as unwanted
nuisances. They have no standing whatsoever as members of the com-
munities in which they live. So who then is included in this commu-
nity? In the only hint at the community he has in mind, Ellickson
points to various “individual champions of the public”: pedestrians,
owners and occupiers of abutting land, and organizations that enforce
street decorum (such as Business Improvement Districts and the police)
(1196–1199). With the exception of “orderly” pedestrians (1197) and
the police who work in the interest of the “community” as a whole,
Ellickson’s community is apparently the community of property, since,
as he shows, it is property owners (and to some extent those others
such as renters who are covered by private property rules) who suffer
the greatest “harm” from nearby homeless people engaged in little more
than “minor annoyances.”
Yet Ellickson must recognize (since much of his research has been
on issues of zoning and land management) that this community of

property (including renters) will fight against red-zone designation: no
community of property would willingly accept such a status, as it would
incur unacceptable costs in terms of falling property values and in-
creased maintenance and service costs.34 The “negative externalities” at-
tendant upon the creation of an official ghetto (with its designating
signs) would be too great. His advocacy of “informal” zoning, therefore,
stands as all the more curious and fanciful: he never addresses the ques-
tions of why informal zoning would not suffer the same problems as
formal zoning. Why would property owners (or adjacent property own-
ers at the edges of the district) not resist the decline of property values
attendant upon the harboring of “broken windows”? The answer is that
they would not,35 and thus the development of freely tolerated—not ju-
dicially mandated—“red zones” is extremely unlikely, especially since,
in Ellickson’s view, “the first best solution to the problem of street mis-
conduct would be the maintenance of a trustworthy police department
whose officers would be given significant discretion in enforcing general
standards against disorderly conduct and public nuisances” (1245, em-
phasis added). Ellickson never even broaches the question of how “gen-
eral standards” and “community norms” are to be determined. In
Ellickson’s proposal there is simply no mechanism—and certainly no
democratic mechanism—outlined for instituting informal zoning, much
less for guaranteeing any level of spatial justice. Not coincidentally,
then, Ellickson suggests absolutely no means—legal, constitutional,
legislative—for guaranteeing that any space would be zoned red.
And, one can surmise, this is precisely why Ellickson so hopes to
win approval for his plan of informal zoning. It is, in the end, an
elaborate hoax, but an extremely dangerous one. It leads exactly to
the same hoped-for outcome as anti-homeless laws in general: the
elimination of not homelessness, but homeless people, by eliminating
any space in which they can be. The differentiation of space, this
practical plan for the implementing a “lively mixing bowl” in the city,
is nothing more than the desire for the same purified space that ulti-
mately motivates anti-homeless laws. But with this crucial difference:
to the degree that Ellickson’s plans for informal zoning are adopted,
they will remain out of the purview of the courts, eliminating a cru-
cial arena in which homeless people’s right to the city can be strug-
gled for, even if those same courts are sometimes inhospitable to such
claims of right.
CONCLUSION
In fact, we have already seen how well the zoning of public space along
the lines of Ellickson’s suggestions works in the contemporary city. In-
stead of merely appreciating or criticizing Ellickson’s public zoning pro-
posal as a “thought experiment” (as he calls it in one place), we would
do well to return to the history of People’s Park and Telegraph Avenue
in Berkeley. There we can see just how “community norms” are con-
structed: they do not just arise spontaneously; if they exist at all, they
are the result of serious and concerted social struggle. Actors with dif-
fering degrees of power, including large institutional players such as
universities, city governments, merchants with differing views on what
makes a “lively mixing bowl,” activists, and the homeless themselves all
contend over just what the “norms” of the community shall be. The po-
lice too are involved in this process, not just as enforcers of already es-
tablished community norms but sometimes also as their progenitors or
their transgressors. Commenting on it all are any number of “little
Arnolds” who seek to sway public opinion—to influence social norms—
toward a more, rather than less, restrictive ordering of public space. The
concept of social norms, in other words, misses exactly the “dialectic of
public space” (as I called it in Chapter 4) that develops through struggle
over particular places and the implementation of particular social vi-
sions. Ellickson’s view of the ordering of public space simply ignores the
forces at work on the ground in all public spaces, forces that are as con-
tentious as they are consensual. And the Berkeley case shows just how
important an appreciation for power must be when considering how
public spaces are to be ordered and policed: we must always be aware of
who benefits from social order and consensus and who doesn’t, whose
interests are served and whose are not.
We have also seen how zoning works in the context of the two
abortion protest cases and the history of public forum jurisprudence ex-
amined in Chapter 2. There we saw how the formal regulation of public
space was both a means of institutionalizing the rights to free speech,
assembly, and protest and a means of undermining exactly those rights.
Most importantly, we saw that this dialectic only developed and pro-
gressed to the degree that people violated established laws, laws that
most frequently sought to protect state and corporate power in the
name of upholding speech and assembly rights. Ellickson’s call for in-
formal or formal public space zoning simply ignores the social history
that is at the root of the constitutional “revolution” Ellickson so de-

plores. Rights to public space, as we have seen throughout this volume,
have only been expanded when they have been forcefully demanded,
quite often by people breaking the existing laws and thereby showing
those laws—about picketing as much as about sleeping—to be oppres-
sive, in their geography if not in their actual wording. The IWW’s de-
mand for the right to speak on the streets of San Diego, Fresno, and
other cities of the United States was, obviously, in direct contradiction
of “community norms” (Chapter 2). Indeed, that was exactly the point.
And through that contradiction, the IWW was able to show just what
was wrong with those norms (at the same time its members struggled to
transform the larger political and economic context that allowed them
to be norms in the first place). And, as I have shown elsewhere (in the
case of anti-picketing laws in agricultural California in the 1930s:
Mitchell 1998c), the very construction of “community” is itself a politi-
cal project often accompanied by great violence. Nor does the abstrac-
tion of “community norms” provide any purchase on the difficult ques-
tions attending the zoning of public space outside abortion clinics.
Indeed, in such places it is hard to imagine what community norms
could possibly be since, in Ellickson’s telling, the community he is in-
terested in is a community of consensus (overseen by property). Such a
community in the case of abortion and abortion providers, for example,
will necessarily run roughshod over someone’s rights—and not through
any democratic means, either.
But in conclusion to this chapter I want to return to the question
that developed as the heart of the Santa Ana cases and which Ellickson
is so happy to ignore: the question of necessity and its implications for
the right to the city. If we recall one of Lefebvre’s arguments outlined in
Chapter 1, we remember that any reasonable “right to the city” requires
also a right to inhabit the city, a right to housing. For Lefebvre (1996
[1968], 179), the right to housing was a necessary precondition of the
right to the city. So too has it long been for activists. But what is remark-
able about the contemporary city, the city that allows a proposal like
Ellickson’s to pass as a reasonable policy suggestion, is that the right to
housing simply is no longer even considered legitimate. In this regard,
consider again the decision the California Supreme Court made in Tobe.
In a part of the decision the court recognized that there is indeed a fun-
damental right to travel implicit in the U.S. Constitution and that this
right to travel carries with it a concomitant right to stay put, a right to
remain in place. But the court also argued that the existence of such a
right in no way obligates the government to find a means to assure that
people can exercise that right. Neither the city nor any other jurisdic-
tion had to provide the homeless with a place to stay. Rather, it was the
obligation of homeless people to legally secure such a place. In the ab-
stract this might make some sense; in any actually existing housing
market, however, it is sheer nonsense.
Yet it is also quite typical of current reasoning, quite typical of a
world in which the right to shelter—or better, the right to housing—is
no longer considered an arena for state intervention. The always mini-
mal U.S. commitment to housing the poor, enshrined first in the public
housing act of 1937, has been all but gutted. This is particularly inter-
esting, given just how easy it has become for homeless people such as
James Eichorn (see pages 208–209) to show that they necessarily have
to break laws in order to live.
It is also indicative of a larger transformation of the economics and
politics of the contemporary city. If one of the solutions to the crises of
overaccumulation that marked the Great Depression was to implement
new systems of collective consumption—such as subsidized housing—
both to jumpstart certain sectors of the economy (construction, con-
sumer durables) and to effectively drive down the costs of labor to indi-
vidual capitals (by subsidizing the real cost of labor reproduction), then
by the late 1960s this solution was increasingly understood to itself be a
fetter on continued capitalist expansion and accumulation (Harvey
1982, 31). As productive capital was “globalized” and labor markets in-
ternationalized (such that the reproduction costs of labor were often
borne elsewhere [N. Smith 2000]), welfare and housing subsidies in the
United States lost both political favor and their political–economic
raison-d’être. In this light, the famous implosion of the Pruitt-Igoe
public housing project in St. Louis in July 197236 represented not only
the end of an architectural era (Jencks 1981; Harvey 1989) but also the
inauguration of what Harvey (1982, 31) calls a new “class strategy.”
This strategy has sought to capture relative surplus value through the
gutting rather than the development of social services and other forms
of working-class subsidization, in the expectation that these costs will
be depressed through the simpler mechanism of immiseration. Under
this new neoliberal political-economic model, the social costs of labor
reproduction are, like the benefits of development, privatized.
The contradictions that such a shift in strategy has led to are appar-
ent: the rise of homelessness and other markers of abject poverty are, of
course, a means of instilling discipline in working populations (Piven
and Cloward 1992; Peck 1996), even as they also seem to threaten a
city’s ability to capture investment in an increasingly competitive global
market in corporate locations. The response to this contradiction can
take two forms, one of which, as we have seen, has been fully exercised:
this is the strategy of criminalization of poor and homeless people, of
greater regulation of space, and of a minimalist discourse about rights
(arising in response) that is restricted to discussions over whether or
not people should have the right to urinate in alleys, to sit on sidewalks,
or to sleep in public parks. The second strategy is one of struggling for a
greater right to the city, a right that includes the right to housing, the
right to space, and the right to control, rather than be the victims of,
economic policy. This second strategy requires, however, a reclamation
of public space, not for societal order and control (as important as
those, in fact, may be) but rather for the struggle for justice. It requires,
as we saw in our discussion of Iris Marion Young’s ideas in Chapter 1, a
strong commitment to distributive justice, but not only that. It also re-
quires taking control over the means of distribution—and production—
of justice. In turn, this requires that we return again to Hyde Park, that
we find ways to turn the space of the city into the site of the demand for
justice—a justice that requires housing as a precondition but that also
requires even more: the incessant cry and demand for the right to the
city.
NOTES
1. The number of annual deaths in any city is highly variable. In 1997 San
Francisco congratulated itself for having witnessed what the San Francisco
Chronicle (1997) called a “big drop in homeless deaths.” Homeless deaths
“plunged 34 percent” from 1996 levels. Still, 102 homeless people died on
the streets: nearly two a week. The year 1993 likewise saw a drop in home-
less deaths, with 101 dying. In 1992, 138 died on the streets (San Francisco
Chronicle 1993). San Francisco tracks its homeless deaths from December
1 to November 30 each year.
2. Tobe v. Santa Ana (1995), 1177. The Santa Ana case has been widely ana-
lyzed. Among others, see Takahashi (1998, Ch. 8); Simon (1995); Fasanelli
(2000); J. Smith (1996). We will come back to the details of this case
throughout this chapter. The history of demonization of “vagrants” in the
United States is traced in Cresswell (2001).
3. Such a result, of course, is not unique to homeless people. The controversy

over racial profiling that commanded much press attention before the Sep-
tember 11, 2001, terrorist attacks, no less than the almost immediate re-
consideration of whether profiling was so bad in the wake of the attacks, is
indicative of how fragile human rights can be for “suspect classes.” The
Bush administration, and especially the Department of Justice, seems in-
tent in its “war on terrorism” to make clear just how conditional rights can
be when a state is not forced to protect them. The range of detentions, de-
portations, and denials of basic rights the federal government oversaw in
the months after September 11, especially as a matter of policy, is only now
becoming clear. The willingness of the courts to support even the most ab-
surd restrictions on immigrants, radicals, and others was made plain
enough during World War I (see Chapter 2) and since then with the “relo-
cation” of Japanese Americans during World War II; COINTELPRO (the
Counter Intelligence Programs of the FBI) and other actions against radi-
cals during the 1960s and the abrogation of search-and-seizure protections
as part of the “war on drugs” all give little reason for optimism that either
the federal state or the courts will find it within their power to keep from
instituting the most draconian “security” measures—unless, of course,
forced to do so.
4. And so here the architects of the “broken windows” thesis reveal them-
selves to be as concerned with creating a city filled with conventional, ac-
ceptable people as with reducing crime. They are concerned with eliminat-
ing people whom they see as “out of place” in the terms established by
Cresswell (1996).
5. Kelling and Coles (1996) specifically argue that engaging in indiscriminant
street sweeps is bad public policy (not because it is wrong but because it
leads to bad publicity), but this has not deterred those, such as Santa Ana’s
Police Chief Walters, who (as we will see) used the broken windows thesis
to justify such sweeps.
6. This is, of course, the logic of the ghetto, a logic that the Nazis pushed to
an extreme, but which they were by no means alone in adhering to (as the
internment of Japanese Americans during World War II made plain).
7. That is, space as landscape (as discussed in Chapter 5) is determinant.
8. Beginning in the late 1950s, shifts in American constitutional law led to
the repeal of most “status crime” laws such as vagrancy laws that punished
people for an involuntary status rather than for some identifiable conduct.
By clearly defining “disorderly behavior” as those actions that homeless
people must engage in (like sleeping or sitting on benches and sidewalks),
authors such as Wilson and Kelling are calling for the return of status
crime punishment under a different guise. The argument about harms that
public order proponents present will be dissected more fully below.
9. We will examine these claims more fully below.
10. The argument here, of course, is circular, since Kelling and Coles (1996)
are making it in defense of instituting laws that make many of the behav-
iors they dislike illegal.
11. Alice Baum and Donald Burnes are the authors of an analysis of homeless-
ness, A Nation in Denial: The Truth about Homelessness (1993), that made
quite a stir among editorialists in 1993 by blaming homeless people for the
ills that befell them.
12. In fact, the evidence from the text of Fixing Broken Windows shows just
how difficult it is to maintain the pretense that the authors are not interest-
ing in targeting the homeless as a class. While they are often assiduous in
their placing of the world “homeless” inside quotation marks to indicate
that they are using the word as a shorthand for a set of behaviors, and
while they occasionally profess their concern for homeless individuals and
their housing needs, they also refer un-self-consciously to those they wish
to see eliminated from the streets and subway stations as “indigents”
(117).
13. A news article from early 1990 (Eng 1990a) cited “homeless advocates” as
saying there were about 10,000 homeless people in Orange County, of
whom about 1,500 were in Santa Ana. By the mid-1990s, the estimate was
12,000–15,000 homeless people in Orange County (Dolan 1995, cited in
Takahashi 1998, 161). As we will see, even a range of estimates as large as
this make little difference, given the documented paucity of shelter beds
and the high rents in the area.
14. The avoidance of costly settlements became increasingly important as Or-
ange County was forced into bankruptcy in the mid-1990s due to its finan-
cial mismanagement (Takahashi 1998).
15. The cruel-and-unusual-punishment argument is related to the necessity
defense that we will soon examine and it will be explored in more detail
then.
16. On the history of vagrancy laws in the United States, see Cresswell (2001);
on their use in California, see McWilliams (1971 [1939]).
17. Santa Ana City Code § 10-402. A good overview of these laws is Foscarinis
(1996).
18. The spatial reasoning of the Court here is every bit as problematic as the
spatial reasoning of the University of California in 1964 when it sought to
establish an alternative free speech area in a lightly traveled area of the
Berkeley campus (see Chapter 3).
19. A good overview of the jurisprudence on homelessness and First Amend-
ment issues is Millich (1994).
20. This and the next paragraph are a revision of an analysis made I first made
in Mitchell (1998b).
21. The district court was later reversed on procedural grounds that did not
touch on the substance of its ruling.
22. See note 13 above and its associated text.
23. On the crisis of affordable housing more generally, see HUD (1999).
24. The following section is a slight revision of an analysis I first presented in
Mitchell (2001b).
25. This article has been reprinted, in condensed form, as Ch. 2 in Blomley et
al.’s (2000) Legal Geographies Reader. While that version gives a good sense
of the flavor of Ellickson’s article, as always the devil is in the details, and
so searching out the full law review article is well worth it.
26. For empirical analyses of this “freedom,” see, for example, Rahimian,
Wolch, and Koegel (1992); Rowe and Wolch (1990); Wolch, Rahimian,
and Koegel (1993).
27. The nature of this “freedom” was made plain in November 1999, when
New York Mayor Giuliani ordered city police to arrest and jail any home-
less person in city streets or parks who refused to move along when or-
dered to do so. As Sartre once commented, he was never so free than at
that moment on a Paris street when a Nazi soldier held a gun to his head
and told him to cross the street.
28. “The softening of white hostility towards blacks during and after the 1960s
seems to have allayed the reservation many underclass blacks had previ-
ously harbored about becoming chronic users of downtown spaces. In any
event, the panhandlers and street homeless who began appearing in Ameri-
can downtowns after 1980 were disproportionately black. No fact better
demonstrates the success of the post-1960 inclusionary zeitgeist” (Ellick-
son 1996, 1216–1217).
29. Ellickson notes in a footnote at this point that police did in fact frequently
arrest drunks on skid row and that they engaged in regular “sweeps” of the
streets of skid row, indiscriminately detaining or arresting street people,
but he dismisses this evidence with the comment that even so the police
seemed to be “more permissive” on skid row than in other parts of town
(1996, 1208, n. 232, citing Bittner 1967). Leaving aside the questionable
logic that makes injustice OK if it is less severe in some places than oth-
ers, the evidence in fact does not even support Ellickson on his most ba-
sic claims about the permissiveness of the police (see, e.g., McSheehy
1979).
30. Here Ellickson (1996) adds a footnote saying, “One can only conjecture
how often night-sticks were used to enforce these orders.” Actually, one
could read the ethnographic and historical evidence, including Ellickson’s
own sources (e.g., Bahr 1973; Bittner 1967; J. Wilson 1968) (1208, n. 233).
Doing so provides a clear, if not appealing, picture of the content of
Ellickson’s nostalgia.
31. And here Ellickson’s own footnote directly contradicts the message in the
body of the paper. Where in the body Ellickson says “a bum would never
hear this message,” in the footnote he points out just how frequently they
did, but once again says this does not matter because police were “more
tolerant” in skid row than elsewhere. Thus, some rather brutal policing
tactics are justified because they are not as brutal as they could conceivably
be (1209, n. 234). This also leaves aside the question of why “a cop” has
the right to determine who is allowed where in the city—why some citi-
zens have the right to all the city and others must be sequestered in partic-
ular districts.
32. Ellickson does not examine the processes of gentrification, assumes that
urban renewal followed (rather than led) skid row decline, and is skeptical
of the role of SRO (single-room-occupancy) destruction in the growth of

homelessness (1216, n. 279).
33. And here, perhaps unwittingly, Ellickson aligns his scheme with the old
Federal Housing Authority program of redlining. The history of commu-
nity norms-based zoning that gave rise to the FHA’s racist lending practices
that did so much to maintain and increase segregation in American metro-
politan areas is briefly told in Jackson (1985).
34. There are exceptions to this statement, such as New Orleans’s French
Quarter, but it is an exception only because the “relaxed” street norms and
“relative rowdiness” have been fully commodified and sold to slumming
middle and upper classes, conventioneers, and the like, and are not the re-
sult of poor people seeking to meet their bodily needs. San Diego’s
Gaslamp district similarly tolerates a stunning amount of noise and public
drunkenness in the streets and on the sidewalks from conventioneers, col-
lege students, and other bar and nightclub patrons, but is increasingly
ruthless in its policies of sweeping publicly drunk homeless people out of
the area. I know from experience that the late-night noise on Fifth Avenue
is loud enough to make it impossible to sleep in a hotel on that street even
with the windows closed and that the amount of vomit staining the early
Sunday morning streets is impressive. Surely these are “minor annoyances”
worth policing too—except, of course, that these annoyances are deeply
profitable.
35. The best analogy is probably the history of both formal and informal zon-
ing against adult cinemas, bookstores, and strip-clubs in most American
cities—and the intense land and political disputes such zoning engenders.
Consider New York Mayor Giuliani’s campaign to rid Manhattan of all
“adult” establishments despite formal zoning laws that allow them. An-
other analogy is the history of “not-in-my-backyard” (NIMBY) struggles to
keep halfway houses, shelters, and the like out of certain neighborhoods
(see Takahashi 1998).
36. Considered a monumental design failure, the high-rise Pruitt-Igoe housing
project was destroyed by order of the U.S. Department of Housing and Ur-
ban Development and the local housing authority. Many commentators
mark this as the end of America’s experimentation with “modernist” mod-
els of public housing provision.
Conclusion
The Illusion and

Necessity of Order
Toward a Just City
On September 11, 2001, University of Arizona Professor of Law Bernard

E. Harcourt published an essay on the op-ed page of The New York
Times that, no doubt, has been all but forgotten in the ensuing mael-
strom. But it is an essay worth considering for a moment. September 11
was to be primary election day in New York. At stake were the party
nominations for mayor—for the candidates who would run to succeed
Rudy Giuliani. Harcourt’s essay was titled “The Broken-Window Myth”
(Harcourt 2001b), and it drew on research he recently published in his
book Illusion of Order: The False Promise of Broken Windows (Harcourt
2001a). This research, and other works like it (Sampson and Rauden-
bush 2001), shows that “broken-windows” policing likely does not
reduce crime. Other factors—the waning of the crack epidemic, an
improved economy, and simply more police—seem to do a better job of
explaining the drop in crime that the 1990s witnessed in most cities in
the United States. Harcourt argued that “the best social science research
. . . suggests that rather than leading to serious crime, disorder—like
crime—is caused by conditions like poverty and a lack of trust between
neighbors” (Harcourt 2001b, A23). Not only does broken windows po-
licing, and the whole ideological apparatus that has grown up around it,
do nothing to alleviate poverty (indeed, I would argue that one of its
main effects is precisely to turn attention away from the need to address
227
poverty), but it can positively increase the level of distrust. As Harcourt

(2001b, A23) concluded, broken windows policing “diminishes trust
between the police and the community, violates basic rights and scape-
goats the homeless and other people we deem disorderly.” The missed
opportunity of the mayoral primary campaigns, Harcourt suggested in
this essay, was that a serious discussion on broken windows policing
was never broached during the mayoral campaign. All the candidates
had endorsed the Giuliani administration’s theory of policing “in some
form” (even if some candidates worried about violations of civil liber-
ties) (Harcourt 2001b, A23).1
Subsequent to the September 11 attack on New York City, such a
debate is even more unlikely. Mayor Giuliani has been lionized for his
handling of the crisis, and any criticism of his previous 8 years of
maladministration in the city is exceptionally muted. But such a debate,
as I hope the previous two chapters has indicated, is desperately
needed, for it raises still valid questions—no matter how much the at-
tacks of September 11 may have shifted our sense of what cities do,
what they are for, and how the right to them may have been changed.
Those questions are: Just what sort of order is best for the city? What
sort of order will promote the most just city—and for whom? Who will
have the right to the city? Who, in the language of both Lefebvre and
Bunge, will be allowed to inhabit the city? These questions do not at all
ask whether there should be any “order” whatsoever, but they ask the
more political and more important question of whom that order should
serve and by whom it should be governed.
These are the same questions, of course, that animated Matthew
Arnold. The riot in Hyde Park in 1866 seemed to portend a frightening,
lawless future, and stringent controls on behavior, and on the use of
public space, seemed necessary if “anarchy” was to be kept at bay and
the possibility of “culture” doing its work was to be maintained. The
texture of fear in public spaces has changed during the intervening
years, and both the design and legal approaches to order have advanced.
But now we are asked to contemplate, along with all the “security ex-
perts” who have come to the fore in the wake of 9/11 (see the Introduc-
tion), whether it is realistic anymore to maintain even an expectation of
public space—an expectation of a space in which one can both be pub-
lic and anonymous, in which the play of politics can be given relatively
free reign. Isn’t public space a “luxury” we simply can no longer afford?
And yet, at the same time, public spaces, and especially spontane-
Conclusion 229
ous gatherings in them, have been an enormous solace in the wake of

the September 11th attacks. People have sought out each other in pub-
lic space. Vigils have been held, and protests—yes, even protests—orga-
nized. But if such gatherings reinforce the necessity of urban public
space, they obviously do little to address the problems that broken win-
dows policing and quality-of-life initiatives arose to either meet or di-
vert attention from. These problems remain urgent. People still live in
public spaces, and they are still dying there too. The issues of urban
alienation that the Berkeley Free Speech and People’s Park movements
confronted remain just as important as they were before September 11.
What is the connection between these two issues, the issue of homeless-
ness and “quality of life,” and the issue of urban alienation for which
struggled-over public space can be a (partial) solution? Perhaps that re-
lation can best be seen, in the negative, in the dream of the completely
controlled city that the New York Times’s security experts described in
the wake of the attacks (Barstow 2001). Here is a city in which everyone
is known and every movement is predicted. It is a city in which nothing
goes unnoticed and in which all behavior is properly scripted. In such a
city, as in a city in which all property is private, there simply is no room
for homeless people. Indeed, the homeless become even more threaten-
ing, for one of the problems that homeless people pose is that they sim-
ply are not predictable. They may hide all manner of pathologies. A siz-
able street population, even more, may provide a cover for unsavory
characters—just like that “criminal element” in People’s Park that so
worried the University of California and the Telegraph Avenue mer-
chants and which then became the pretext for attempts to crack down
on the whole of the homeless population. Nor can there be any room
for the messy spontaneity of politics, for the unorchestrated play of dif-
ference that Iris Marion Young and others assert is so necessary to the
development of a just public sphere. When all is controlled, there can
simply be no right to the city, unless, of course it is for you—for your
desires, for your interests, maybe even for your needs—that the city is
controlled in the first place.
In this sense the vision of the security experts is in fact the same vi-
sion as those who promote broken windows policing and other “quality
of life” initiatives: the broken windows thesis says that all homeless
people must be criminalized—made suspect—because of the propensity
of other people to commit crimes. Similarly, the vision of the city pro-
moted by security experts indicates that all people in public will need to
be made suspect since there might be some in the city who are terrorists
(or even lesser criminals). The dream of the perfectly ordered city, then,
is exactly the dream in which the city is fully alienated from its resi-
dents, placed under total control: it is an authoritarian, even totalitar-
ian, fantasy. Broken windows policing—criminalizing the many so as to
hopefully deter the crimes of a different few—does not seem to work on
its own terms. What chance is there that the perfectly secure city, a city
that operates on exactly the same principle as broken windows policing,
will fare any better? The world promoted by the security experts will
likely only create the illusion of order while at the same time imple-
menting an urbanism that is as alienating as it is controlling. Will the
wholesale criminalization and rounding up of people like that which
Santa Ana undertook in the early 1990s—but now in the name of secu-
rity as well as “comfort”—seem a small price to pay?
What other sorts of “order,” we need to ask, are imaginable in the
“post-9/11” world? What other sorts of order are necessary? And who
gets to make that decision?
SPACES OF JUSTICE
If, as Mike Davis (1992) avers, “[t]he universal consequence of the cru-
sade to secure the city is the destruction of any truly democratic space,”
then the search for a democratic order of public space must begin by
questioning that crusade to secure the city. The first question to be ad-
dressed is in whose interest the city is being secured. In the wake of the
terrorist attacks of September 11, the answer to that question must
seem obvious: it is being secured in our interest. And yet, as the histori-
cal and geographical processes examined in this book make clear, the
crusade to “secure the city” is not new, and every attempt to reorder the
city has served particular interests.
Those particular interests, however, have always been contested.
Certainly workers have contested laws restricting their right to speak or
to picket in public space. And as we have seen in detail, student activ-
ists in Berkeley likewise found it necessary to assert their right to speak
as a means of asserting their right to politics—their right to transform
the alienating political structures of the day. The only way to transform,
and even to overthrow, the order—and hence the interests encapsulated
in that order—has been to defy that order, to break laws, to act without
Conclusion 231
proper decorum. Not only have workers found this, of course, but so
too did black civil rights activists and women and gay liberationists in
the 1950s, 1960s, and 1970s. In each case, taking to the streets and
overthrowing the normative order the streets represent—an order
marked by racism, by sexism, and by homophobia—have been crucial
to advancing the cause of justice. This process—this taking of space—
has often—indeed, I will say has always—been contentious; it has ever
been a struggle. As Iris Marion Young (1990, 240), has argued, “politi-
cal theorists who extol the value of community often construe the pub-
lic as a realm of unity and mutual understanding, but this does not co-
here with our actual experience of public space.” In public space, “one
always risks encounter with those who are different.” And those who
are different might necessarily be struggling for a place in that public.
But concerted movements in and over public space seem less perti-
nent in the case of homeless people. Yet, in fact, homeless movements
have historically been, and remain, quite important. At the turn of the
20th century the various “armies” that marched on the national and
state capitals—like Coxey’s Army in 1893 (Schwantes 1985) and Kelly’s
Army in San Francisco in 1914 (McWilliams 1971 [1939], 164–166;
Parker 1919)—were made up of considerable numbers of what we
would now call homeless people (people living in run-down flop
houses, living rough in tramp jungles, etc.).2 And they were met by ev-
ery bit as much violence as were the IWW around World War I or the
People’s Park activists of the 1960s. More recently, encampments of
homeless people—Justiceville in Los Angeles, Camp Agnos in San Fran-
cisco (named after an early 1990s mayor), the camp-out on the Santa
Monica City Hall steps discussed in Chapter 5, and the encampment
eventually cleaned out of Tompkins Square Park, like the Center for
Creative Non-Violence’s “Reaganville” moved out of Lafayette Park (see
Chapter 6)—have been deeply political statements. They have been im-
portant and striking commentaries on the current urban “order.” And
they have been a loud “cry and demand” for a new order.
One of the most interesting current interventions into the “order”
of public space—the campaign to secure the city—is Tempe, Arizona’s
“Project S.I.T.” (http://www.public.asu.edu/~aldous/). Project S.I.T. was
created “to study, analyze, and challenge sidewalk ordinances and other
‘public behavior’ laws that aim selectively at homeless/street people and
their right to exist in public places.” Project members engage in civil
disobedience (staging sit-ins on Tempe and other Arizona sidewalks,
thereby updating that old tradition of disobedience that runs through

the labor activists of the first part of the 20th century and the civil rights
and student activists of the 1950s and 1960s), legal action, education,
and outreach. Project S.I.T. won an important victory in early 2000
when it secured a court decision overturning Tempe’s “anti-sitting” law.
An appellate court later reversed that decision, but the case is still un-
settled, as a new round of appeals has been filed. Project S.I.T.’s aim, like
that of lawyers for homeless people in New York and Santa Ana, is not
really (or not only) to secure the right to sit on a sidewalk or to sleep in
a park, which as we have seen is a pretty narrow right indeed. Rather, it
is to contest two related issues: the privatization of public space and the
lack of decent and affordable housing. Project S.I.T. members have
found that many of the apparently public sidewalks of downtown
Tempe have been deeded to developers and business owners. With pri-
vate, rather than public, property rules in effect, therefore, people can
be removed for entirely arbitrary reasons, that is, without cause. Project
S.I.T. is devoted to exposing this wholesale transfer of the public realm
into private hands and to reversing it—to asserting a right to the city for
all and not just for the cappuccinoed few. Simultaneously the Project
continually highlights the fact that there is not a single homeless shelter
in the city of Tempe. In such a circumstance, the enforcement of no-
sitting and no-sleeping laws is simply perverse; it quite fundamentally
denies the right of some people to inhabit the city. Project S.I.T. is work-
ing to implement a more just vision of order on the streets of Tempe.
There is a specific way to think about these twin issues of privatiza-
tion and alienation, on the one hand, and the right to inhabit and the
right to the city, on the other, as they relate to public space. As Richard
Van Deusen (2002) convincingly argues, public space in the city is a ba-
rometer of “justice regimes.” By this he means that the morphology of
exclusion and access, of power and marginalization, and of struggle and
the possibility of representation encapsulates the existing structure of
social justice. On the one hand, then, the very fact that so many people
are forced, by the current structure of the economy and by public policy,
to sleep in public—to “colonize” public space—speaks volumes about
the current real social relations within which we live. On the other
hand, the fact that we then criminalize those who are so forced to live,
that we seek to order public space such that there is simply no room for
those evicted from the housing market and forced to live on the streets,3
is positive testimony about where true power resides—and of what jus-
Conclusion 233
tice consists. Similarly, the fact that we have so privatized public

space—encapsulating it within malls, subjecting it to special Business
Improvement District regulations, deeding it to private corporations—
that it is all but impossible to effectively picket (no matter what current
jurisprudence might say about the right to picket) speaks volumes
about what we as a society think of the rights of labor. The fact that
there are some in society who will nonetheless fight to expand peoples’
rights to public space—“gladiators for liberty,” as George Will and other
“little Arnolds” would sneeringly call them—also speaks volumes.
Whatever our ideals of justice may be, these facts, these struggles, and
their reification in public space are more important.
And yet our ideals of public space are important, as Chapter 4 sug-
gested. They frame how we struggle and to what end. They guide our
desires for and uses of public space. To the degree that we seek to make
public spaces spaces of justice, then we work to that degree to imple-
ment a particular ideal—or what I call a “vision”—of public space, an
ideal based on a commitment to reconstructing the right to the city
such that it becomes a reality not for capital, and certainly not just for
the wealthy or the suburban shopper, but for all. Yet, as Young (1990,
241) correctly argues, “an ideal can only inspire action for social change
if it arises from possibilities suggested by actual experience.” While
much of this book has been geared toward examining what Habermas
(1989) might have called the “structural transformation of public
space”—that is, the legal and other practices, often heavily dominated
by capital and the forces of a restrictive, intemperate order, that have
shaped and reshaped public space in America—its subtext has been pre-
cisely that it is struggle, and not just the domineering actions of the
powerful, that truly shapes public space.
There have been victories. The IWW was in fact quite successful in
its many free speech fights; black civil rights activists have done far
more than make downtown an acceptable place for an African American
person to be homeless, as Ellickson sickeningly suggests (see Chapter
6), and the student activists in Berkeley quite radically transformed
what the public space of an American campus could be.4 The very sur-
vival of People’s Park in the face of so many pressures to “reform” it is
testimony to the ability of ongoing struggle to maintain a certain vision
of public space.
This “vision”—and its opposite—can be understood in slightly dif-
ferent spatial terms. Public space is, in some senses, a utopia. The ideal
of an unmediated space can never be met5—nor can the ideal of a fully

controlled space in which the public basks in the splendor of spectacle
but is never at any sort of “risk.” In Spaces of Hope, David Harvey
(2000) argues that utopian visions can be divided into two classes. First
are “utopias of spatial form.” These are the traditional utopias—Thomas
More’s original Utopia and its many descendants—that seek to specify a
spatial form, an arrangement of people and things on the earth, that is
fully just, even “happy.” Once the proper spatial form is specified, his-
tory can come to an end, as a proper and just arrangement of relation-
ships and things has been achieved. The dream of a perfectly secure city,
the dream of a risk-free public space in which the consuming classes do
not have to be troubled by the sight of disheveled homeless people, like
the dream of an orderly culture that has been inherited from Matthew
Arnold, is just this sort of utopia. And, as with Arnold (or for that mat-
ter Ellickson or the architects of the broken window thesis), exception-
ally restrictive codes, covenants, and laws have to be implemented to
guarantee the success of the spatial order presumed to be made manifest
in the space itself.6
The second form of utopia is what Harvey calls “utopias of social
process.” These range across the political spectrum but can be seen per-
haps most clearly in Marx’s work, according to Harvey (2000, 174–
175). On the one hand, Marx exposed the utopianism of free market
ideologies. The “perfect” free market is a utopia of social process: “give
free markets room to flourish, then all will be well with the world”
(Harvey 2000, 175). The assumption is that, once the process is set into
motion, utopia will result. On the other hand, Marx himself proposed
an alternative utopia of social process, a utopia in which class struggle
continually upsets the social order until that moment when the oppres-
sive power of expropriators is itself expropriated. Utopia of process is a
much more complex form of utopia than utopia of spatial form. But it
only raises what Harvey (2000, 177) sees as the key issue, which is the
issue of just “what happen[s] when the utopianism of the process
comes geographically to earth,” a question made obvious even in the
earliest years of the Russian revolution (to say nothing of the American:
it was, after all, within a decade of the ratification of the Constitution
that Congress passed the Alien and Sedition Acts). “The upshot,”
Harvey (2000, 179) argues, “is that the purity of any utopianism of pro-
cess inevitably gets upset by its manner of spatialization.”
We have, then, a dialectic. Utopias of spatial form (of which the
Conclusion 235
dream of a perfectly ordered public space as encapsulated in anti-

homeless or anti-picketing laws is one) are “upset” by the social pro-
cesses that must be put in place to make utopia reality. And any utopia
of social process (of which the dream of a fully democratic and inclusive
public space is surely one) must inevitably be “upset” by the spatial
form that it takes. Social struggle—the sorts of struggles that underlie
the analyses of the preceding chapters even when all the weight of those
analyses seems to come down on the side of struggle’s opposite, the im-
plementation of a repressive social order—remains critical to the actual
structuring and shaping of social justice. And this is why, following Van
Deusen (2002), that public space must be understood as a gauge of the
regimes of justice extant at any particular moment. Public space is, in
this sense, the space of justice. It is not only the space where the right to
the city is struggled over; it is where it is implemented and represented.
It is where utopia is both given spatial form and given lie to. Utopia is
impossible, but the ongoing struggle toward it is not.
Despite its impossibility, Harvey (2000, 196) nonetheless argues for
the importance of utopia. He asks, “How, then, can a stronger utopian-
ism be constructed that integrates social process with spatial form?”7
Harvey argues, rightly, that any answer to this question “has to face up
to the materialist problems of authority and closure.” His discussion is
worth repeating:
Closure (the making of something) of any sort contains its own authority
because to materialize any one design, no matter how playfully con-
structed, is to foreclose, in some cases temporarily but in other instances
relatively permanently, on the possibility of materializing others. We can-
not evade such choices. The dialectic is “either/or” not “both/and.” What
the materialization of utopianism of spatial form so clearly confronts is the
problem of closure and it is this which the utopianism of the social pro-
8
cess so dangerously evades. (Harvey 2000, 196)
The materialization of order, in other words, is as inevitable as it is nec-

essary. While the violent struggles of the IWW, the seemingly radical de-
mands of the FSM, the taking of People’s Park, and the myriad activities
of all those “gladiators of liberty” who seek to create a more just space
for homeless people in the city might seem the antithesis of “order,” in
fact the struggle is exactly over what sort of order is to be material-
ized—and what room there will be in this order for a more democratic
“process.”
At the same time, order must be contingent—contingent on social

and economic equality, or at least the ongoing push in that direction.
This is particularly important because, as Harvey notes, any imposition
of order necessarily forecloses other, alternative materializations. And
this, then, is exactly why Raymond Williams urges us to return again
and again to Hyde Park, for without doing so new processes and new
spatialities cannot be emplaced. Claiming the right to the city requires
never taking that right for granted, never being satisfied with how it is
for now “closed,” how it is for now “secured,” how, for now, utopia has
been materialized. Expanding the right to the city requires a clear focus
on the utopic possibilities, and the dangers, of always seeking to re-
open, and thus to reform, public space in the image of a more just urban
order.
NOTES
1. Harcourt goes on to explicitly state the obvious point—that the erosion of

civil liberties is an integral part of broken windows policing (such policing
is based on the erosion of liberties), not an accidental or incidental—and
hence correctable—by-product of it. New York was not the only city where
broken windows policing was central to a mayoral campaign. One of the
candidates for mayor in Seattle during the same election cycle was City At-
torney Mark Sidran, who as we have seen is a keen promoter of “quality of
life” campaigns. Sidran lost an exceptionally close race, one decided by late-
counted mail-in ballots.
2. An excellent recent accounting of the context for these movements (if not
for the movements themselves) can be found in Cresswell (2001).
3. See, especially, Deutsche (1996).
4. It is just a shame that so many of those who benefited from the Free Speech
Movement are now, as their own children reach college age, some of the
most vociferous proponents of a return to in loco parentis. On my own cam-
pus this is apparent in everything from demands that the faculty monitor
the drinking habits of students, to frequent requests to the administration
that it report to parents on the political behavior of their children, to calls
from parents to faculty asking for mid-term grades for their children.
5. This is the implication of Lefebvre’s (1991) argument about the production
of space—that all space is always social and so mediated—even if at times
that implication gets lost in his overly abstract rendering of the history of
space.
6. Harvey (2000, 169–173) uses the rise of “neo-traditional” or “new” urban-
ism as his primary example of a contemporary utopia of spatial form. New
urbanism has drawn on, and fed into, that slightly older utopia of spatial
Conclusion 237
form, Disneyland, to create what turns out to be a hugely restrictive set of

social relationships: this utopia of spatial form is only possible by restricting
behavior. The spatial determinism hoped for in design is turned on its head.
See, along these lines, Al-Hindi and Staddon (1997). For wider analyses of
the stringent regulatory regimes that have been developed to protect the
“bourgeois utopias” of suburban America, see MacKenzie (1994) and
Fishman (1987).
7. Iris Marion Young (1990, 241) puts the issue in the negative: “the ideal of
city life as eroticized public vitality where differences are affirmed in open-
ness might seem laughably utopian. For on city streets today the depth of
social injustice is apparent: homeless people lying in doorways, rape in
parks, and cold-blooded racist murder are the realities of city life.” The
question for her is how we construct a city in which domination and op-
pression are minimized and distributions of goods are more just: this is pre-
cisely the question of process and form—the “stronger utopianism”—that
Harvey raises.
8. All of this makes the utopia that Harvey proposes as an Appendix to Spaces
of Hope even more curious: Harvey’s vision, in the end, is almost anti-urban
in its sequestering of difference within communal associations of like-
minded individuals.
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Index
“n” indicates a note
Abrams v. United States, 61–63 Blomley, Nicholas, 20, 29, 50, 73–74
Agora, 131, 138, 147, 189 Brandeis, Louis, 50, 80n24
American Civil Liberties Union 204, Bray, Curtis, 124, 134
208 Brennan, William, 47, 71–72
A Nation in Denial (Baum and “Broken windows” theory, 9, 169,
Burnes), 179, 202–203 199–204, 205, 227–228, 229–
Anderson, Benedict, 158n16 230, 236n1
American Steel Foundries v Tri-City Brown, Edmund G. “Pat”, 97, 101
Central Trades Council, 64–67 Brown, Michael, 151
Arendt, Hannah, 53, 134, 158n18 Brown, Willie, 163
Arnold, Matthew, 6, 13–15, 134, Bunge, William, 20–21, 30
152, 228, 234 and Detroit Geographical Expedi-
Authoritarian populism, 39n21 tion, 38n13
B C
Balter, Joni, 172 Calhoun, Craig, 182
Begging. See also Homelessness, anti- Cheit, Earl, 106, 109
homeless laws Cities, capitalist investment in, 176–
legal status of, 202 177, 222
as speech, 168 Cloward, Richard 173, 178
Berdahl, Robert 153 Cole, David, 71
Berkeley. See also Free Speech Move- Coles, Catherine. See Fixing Broken
ment; People’s Park Windows
homeless policies in, 161–162 Community for Creative Nonvio-
political organizing in, 106 lence (CCNV), 206
and radical politics, 113–114 Cope, Meghan, 26, 84
Telegraph Avenue-South Campus Cosgrove, Denis, 186
Area, 84–85, 90–92, 105–107, Cresswell, Tim, 182, 223n4
114, 115, 124–126 Crilley, Darrel, 186, 189–190
263
264 Index
D Frank, Thomas, 159n29

Fraser, Nancy, 34
Daniels, Stephen, 186 Free Speech. See also First Amend-
D’Arcus, Bruce, 104 ment; Free Speech Movement;
Davis, Mike, 141, 175, 191, 230 Industrial Workers of the
Debord, Guy, 19, 29, 159n24 World; Public forum doctrine;
Debs v. United States 60–61 Rights, to free speech
de Certeau, Michel, 159–160n33 as legal fiction, 58–59
Declaration of Sentiments (1848), Free speech areas (on college cam-
158n14 puses), 82, 115nn 2, 3
Delacour, Michael, 123, 125, 127, Free Speech Movement, Berkeley
134 (FSM), 7, 19, 82, 93–102,
Dinkins, David, 163 130. See also Berkeley, Tele-
“Disneyfication”, 139–140, 152 graph Avenue-South Campus
Disorder. See Social order Area
Domosh, Mona, 79n14 arrest of activists, 101
geographical context, 86–88, 90
E historical context, 85–86, 89
“Hyde Park” area, 93–94, 104–105
Ellickson, Robert, 192nn12, 13, 211– and in loco parentis 86, 92, 116n8
218, 219, 220 Kerr Directives, 90
Engels, Friedrich, 192n Study Committee on Political Ac-
tivities, 100
university restrictions on speech
F
activities, 89–90
Fasanelli, Antonia, 209 Frohwerk v. United States, 60–61
Federal Access to Clinic Entrances Fuchs, Sandor, 96
law (FACE), 45
Feuer, Lewis, 105
First Amendment, 49–50, 206 G
and “bad tendency” doctrine, 60,
Giuliani, Rudy, 16–17, 36n3, 37n9,
19–80n20
164, 197, 225n27, 227–228
and civility, 63–64, 66
Globalization, 164–166, 183, 190–
constitutional limits defined, 59–60
191, 192–192n17, 221
and labor protest, 63–69, 77n6
Goldberg, Arthur, 96, 101
liberal theory of, 47–48, 62–63,
Goldberg, Jackie, 101
71–72
Goldfarb, Alan, 143
and persuasive speech, 61–62
Goss, Jon, 138, 159n22
and political speech, 45–46
Gramsci, Antonio, 79nn11, 12
and sedition, 58–59
Fixing Broken Windows (Kelling and
Coles), 200–203, 211 223n H
Forbath, William, 65
Foscarinis, Maria, 196 Habermas, Jürgen, 34, 131, 134,
Foucault, Michel, 33 149, 158n18, 182, 233
France, Anatole, 15 Hague v. CIO, 69–71
Index 265
Hall, Stuart, 25 and right to the city, 9, 118–119

Harcourt, Bernard, 227–228 and social regulation, 178, 221–
Harvey, David, 22, 30, 165, 175–177, 222
186–187, 221, 234–235 and status crimes, 202, 207, 211,
Hershkovitz, Linda, 148 223n8
Heyns, Roger, 106, 107. 108–110, Homeless people
111 as “broken windows”, 200
Hill v. Colorado, 44–45, 46–47, 49, deaths of, 195–196
74–77, 78n4 changing discourses about, 178–
Holmes, Oliver Wendell, 50, 55, 59– 179, 196–197
63, 66, 80n24 characteristics of, 158–159n21,
Homelessness 202–203, 212
and aesthetics, 185, 186–187, 201 necessary behaviors in public space
and anti-camping ordinances, 206– by, 171–172, 175, 202, 207
207 as part of the public, 135
and anti-homeless laws, 162–163, as problem in public space, 136–137
167, 172, 174, 177–178, 179– as reserve army of labor, 173, 176
180, 185, 186–187, 189, 190– rights of, 209–210, 222
191, 211, 218 “safe havens” for, 171, 207, 210
and bubble laws, 77n1 social movements of, 231; see also
and capitalism, 173–174, 175 Project S.I.T.
as “chronic street nuisance”, 213 as suspect class, 198, 202, 223n3
and citizenship, 135–136, 181– Howell, Phillip, 158n18
182, 183 Hyde Park riots (1866), 13–14, 228
and civility, 16
and “compassion fatigue”, 40n26
criminalization of, 163, 173, 203– I
204, 222 Industrial Workers of the World, 56,
and cruel and unusual punish- 233
ment, 206, 207–208 San Diego free speech fight, 56–58,
and “defense of necessity”, 208– 220
209 In re Eichorn. See Tobe v. Santa Ana
and democracy, 135–136
and economic restructuring, 174–
175 J
and freedom, 172, 184, 192n13,
211, 225n27 Jacobs, Jane, 214
and “harms” to community, 213– Jordan, Frank, 163
214
and housing policy, 196, 203
K
as “lifestyle choice”, 180–181
and regimes of accumulation, 175– Kalven, Harry, 48
176 Kelling, George, 167, 199–203; 211,
and right to be in public space, 223n5
14–15, 27–28, 34, 36n3, 75, Kerr, Clark, 83–84, 85–86, 115n4,
170–171, 199, 201, 218, 231 90, 98–100, 102, 104
266 Index
Kirsch, Scott, 166 Mitchell, David, 156n

Kolodny, Annette, 117n15 Morgan, Edmund, 133
MTV, 145–146
Murray, Patty, 185
L
La Follette Committee (on the N
Rights of Labor), 67–68, 70–
71 Nadle, David, 124, 127, 150–151
Landscape, and Urban Redevelop- National Law Center on Homeless-
ment, 186–188, 190–191 ness and Poverty, 196
Law. See also names of specific cases. Neoliberalism. See Globalization
and equal treatment of unequals, New Urbanism, 236–237n6
72–73
and geography, 46–47, 73–74
“nationalization” of, 215–216 O
and production of space, 28 Ollman, Bertell, 10
Lees, Loretta, 159nn22, 23 Order. See Social order
Lefebvre, Henri, 5, 7, 11, 17–19, 28–
29, 128–129, 140, 149, 150,
220, 236n5 P
Legal Aid Society, Orange County,
Paisner, Steven, 201
204, 208
Palmer Raids, 64
Locational conflict, 81–82, 104–105,
Panhandling. See Begging
113, 115n1
People’s Park, Berkeley, 7–8, 134,
Logan, Michael, 35
136–137, 219, 233
Low, Setha, 147
Berkeley city control over, 120–121
Lipietz, Alain, 175
current status, 152–156
Lipset, Seymour, 92
geographical context, 106
Lyotard, Jean-François, 22
homeless people in, 119, 120,
122–124, 128, 151, 153–154
M ideology of, 108, 113, 117n15
origins of, 106–107
MacDonald, Heather, 180–181, 183 as refuge for homeless people,
Madigan, Frank, 107, 110–111 114–115, 134–135, 156
Madsen v. Women’s Health Center 43– riot (1969), 110–111
44, 46–47, 48–49, 74–77, riot (1989), 118–119
78n4 riot (1991), 126–127, 150–151
Mair, Andrew, 174 as site for political organizing,
Marx, Karl, 22, 165, 173, 177, 234 113–114
Mass Media Group (City University as symbolic space, 119–120, 121–
of New York), 145–146 123, 124, 125, 143, 156n1
Matrix Program. See San Francisco, University of California attempts to
homeless policies in reclaim, 108–109, 114, 118,
McCarthy, Coleman, 190 120–122, 126–127, 153–154
Million Youth March, 17, 37n8 Picketing, 7, 51, 55, 64–67, 70, 233
Index 267
and anti-picketing laws, 67–68 and gender, 158n15

as violent conduct, 65–66, 67–68 homeless people in, 8, 123, 129,
Piven, Francis Fox, 173, 178 134–136, 182–183, 229
Private sphere, 132–133 ideals or visions of, 4, 8, 123, 128–
Production of space, 28–29, 128– 129, 131, 137, 146, 151–152,
129, 140, 165, 236n5 219, 233–234
Project S.I.T., 231–232 Internet as, 146–147
Protest and law, 50–51
at abortion clinics, 6, 42–47, 49, and power, 219
74–75, 150, 220; see also Hill and privacy, 78n7, 135, 157n10,
v. Colorado; Madsen v. Women’s 183
Health Center and private property, 34, 132, 135,
and bubble laws, 44, 46, 80n22, 141–142, 217–218
194n28 privatization of, 142, 232–233
and violence, 75, 78–79n10 and publicity, 18, 135–136, 183
Pseudo-public space, 138 and right to “be”, 123, 147, 170–
Public, the 171, 183, 207, 210
and counterpublics, 149 and security, 1–2, 10, 138, 169,
definitions of, 122, 128, 131–132, 193n23, 229–230
133–134, 139, 141–142, 145– and social justice, 232, 235
146, 154, 157n11 Supreme Court, role of, 50–51
media’s role in, 140–141 surveillance cameras in, 1–2
Public forum doctrine, 7, 43–44, 48, as theater, 141, 186
49, 50–51, 59, 65, 71–73, 75, and transgression, 182–183
88–89, 104, 130, 219–220 and urban planning, 138–140
Public forums, access to, 72–73 and violence, 5, 47, 52–53
Public space zoning, 9, 211, 213, 215–218
and anarchy, 13, 15, 17 Public sphere, 9, 32, 34, 41n34,
and community norms, 216–218, 131–134, 181–182, 191, 229
220, 231 and electronic communication, 34–
corporate domination of, 124, 35, 72, 145–146, 149
138–139, 156n3
and democracy, 49–52, 129, 120–
133, 146–150, 152, 154 Q
and dialectic of inclusion and ex-
“Quality of life” initiatives, 9, 161–
clusion, 51–52, 131–133, 134,
163, 167, 189–190, 209, 229–
141
230. See also Homelessness,
electronic communication as, 144–
and anti-homeless laws
147
“end of public space” arguments,
8, 35–36, 142, 144 R
and fear, 5, 13, 150, 188, 191, 228
for representation, 32–33, 35, 129– Racial profiling, 223n3
130, 148–149, 151–152 Reagan, Ronald, 83, 107, 111–113
and “freedom from resistance”, Rector, James, 110
188–189, 194n30 Red Scare (1919–1920), 64
268 Index
Representation, 140–141. See also Santa Ana, California, homeless poli-

Public Space, for representa- cies in, 197–199, 204–206,
tion 207. See also Tobe v. Santa
Right to the city, 5, 6, 49, 66, 113, Ana
128, 129, 133, 167, 189–190, Santa Monica, homeless policies in,
220, 222, 229, 233, 235, 236 175
defined, 17–19 Savio, Mario, 96, 98–99, 101, 102–
Rights. See also First Amendment; 103
Free Speech Movement; Pub- Scalia, Antonin, 49, 75–76, 77–
lic forum doctrine 78nn3, 4, 6
to assembly, 14, 34, 49, 65, 68–70 Scheer, Robert, 91–92, 108
and the capitalist state, 25–26 Schell, Paul, 163
collective versus individual, 58, 137 Schenck v. United States, 59–60
and community interests, 16, 219– Seattle, homeless policies in, 167–
220 170
critique of, 22–23, 27 Sennett, Richard, 132, 138, 188–
defense of, 25–26 189
defined, 22, 25 Shepard, Matthew, 17, 37n8
as discourse, 26–27 Sidran, Mark, 163, 168–170, 172,
to free speech, 23, 49, 72–74, 211 178, 236n1
to housing, 19, 20–21, 128, 220– Singer, Daniel, 39n23
221 Situationist International, 18–19
to inhabit the city, 18, 19–20, 220– Skid row, 214–216
221, 228, 232 Smith, David (geographer), 30–31,
negative versus positive, 38n19, 71, 33–34, 40n29
74 Smith, David (legal scholar), 163
and power, 26–27, 40n25, 73–74, Smith, Neil, 163–164, 178
223n3 Smolla, Rodney, 60
and production of space, 29 Social difference versus social diver-
to property, 19–20, 27, 33–34, 65, sity, 140
108, 170, 183–184 Social justice, 6, 21, 40, 191, 222,
and race, 39n22 232, 233
to representation, 32–34, 52 and geography, 30–31
to public space, 81, 86, 103–104, and oppression, 31
113, 128, 150, 211 and rights of homeless people, 210
to travel, 189, 192n11, 220–221 rights, importance of, 32, 73–74
“Rights talk”, 6, 21–26, 27, 29, 46 and social difference, 31–32, 237n7
Robinson Doctrine, 207–208 and social order, 228
Rorty, Richard, 24, 25 and social struggle, 235
Rosen, Jeffrey, 193n23 and universality, 31–32
Social order, 9–10, 21, 70, 76, 105,
180, 197, 27
S and “broken windows” theory,
Safir, Howard, 2–3 199–227
San Francisco, homeless policies in, and dialectic of disorder, 6, 51–52,
162, 180–181, 192n, 195, 207 128, 130, 150, 235–236
Index 269
and disorderly conduct, 63–64, Vidler, Anthony, 3–4, 5, 8, 10

65–66 Violence, 52–54, 57. See also
and homelessness, 136, 180 Picketing
and liberty, 17 towards abortion providers, 76
and social justice, 30, 230–231, and property, 20
235–236 and rights, 22
societal need for, in public space, and social justice, 53
14, 15–16, 48, 136
Speech/conduct distinction, 7, 76, 82
Strong, Edward, 95, 96, 97–99 W
Suburbanization, and open space, Wagner Act (1935), 69
143 Waldron, Jeremy, 23, 34, 170–171,
18, 183–184, 210
Wallace, Michael, 159n25
T
Walters, Paul, 198–199, 204
Taft, William Howard, 57–58, 63–66 Walzer, Michael, 190
Tempe, Arizona, homeless policies Warren, Stacy, 168
in, 231–232 Washington, DC, homeless policies
Tiananmen Square protests, 148 in, 188
Tien, Ceng-Lin, 151 Weinberg, Jack, 96
Tier, Robert, 16, 26, 201–202 Will, George, 15, 136
Tobe v. Santa Ana, 208–209, 220– Williams, Raymond, 6, 13–15, 50,
221, 222n2 52–53, 236
Towle, Katherine, 92, 94 Wilson, Elizabeth, 158n14
Tushnet, Mark, 22–24, 25, 27, 54, Wilson, James Q., 169, 199, 200–
73 201
Wolff, Robert, 86
World Trade Center, terrorist attacks
U on, 1–4, 228
University of California. See Free
Speech Movement; People’s
Y
Park
Utopias, 233–235 Young, Iris Marion, 25, 31–33, 40n,
131, 139, 157–158n13, 222,
229, 231, 233, 237n7
V
Vagrancy laws, 215. See also Home-
Z
lessness, and anti-homeless
laws Zinmeister, Karl, 37n4
Van Deusen, Richard, 232, 235 Zukin, Sharon, 191
About the Author
Don Mitchell is a Professor of Geography in the Maxwell School at

Syracuse University. After receiving his PhD in geography from Rutgers
University in 1992, he taught at the University of Colorado before
moving to Syracuse. He is the author of The Lie of the Land: Migrant
Workers and the California Landscape (1996) and Cultural Geography:
A Critical Introduction, as well as numerous articles on the geography of
labor, urban public space, and contemporary theories of culture. He is a
recipient of a MacArthur Fellowship and has held a Fulbright Fellow-
ship at the University of Oslo. He is the founder and director of the
People’s Geography Project (www.peoplesgeography.org).
270

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THE RIGHT TO THE CITY

The Right to the City

THE GUILFORD PRESS

All rights reserved

No part of this book may be reproduced, translated, stored in

Printed in the United States of America

This book is printed on acid-free paper.

Last digit is print number: 9 8 7 6 5 4 3 2 1

Library of Congress Cataloging-in-Publication Data

Mitchell, Don, 1961–

Prompted by my own political involvements and a task set for me by

down illustrations); and Reecia Orzeck, who tracked down last-minute

Introduction The Fight for Public Space: What Has Changed? 1

Chapter 1 To Go Again to Hyde Park: Public Space, Rights, 13

Chapter 2 Making Dissent Safe for Democracy: 42

Chapter 3 From Free Speech to People’s Park: 81

Chapter 4 The End of Public Space?: People’s Park, 118

Chapter 5 The Annihilation of Space by Law: 161

Chapter 6 No Right to the City: Anti-Homeless Campaigns, 195

Conclusion The Illusion and Necessity of Order: 227

About the Author 270

The universal consequence of the crusade to secure

The Fight for Public Space

On the Sunday following the horrific terrorist plane crash attacks of

by prominent signs) in the city’s streets. Surveillance cameras had be-

citizens to be on the lookout); and the installation of numerous plant-

a set of questions about the dialectic of order and disorder as it is

around 1910, through a series of celebrated, and rather reactionary,

constricted, sort of public sphere. I do not find this kind of public

1. Interestingly, Vidler does not discuss the decentralization schemes spon-

To Go Again to Hyde Park

[1980], 6) rather than people struggling for their rights—their right to

is not limited to issues concerning homeless people. “Our own little

PUBLIC SPACE AND THE RIGHT TO THE CITY

Shields 1998), Lefebvre took to heart the argument that current

MacPherson 1978). And this act of expulsion, this right of property,

ately needed but also desperately in need of redesign. Public housing in

weapons of mass destruction, and the transformation of people not into

and shelter right now, and demanding those needs be satisfied—

And equally important, “the predominance of negative rights creates an

the heels of the 1968 uprisings, arguments such as those by Tushnet

degree that we deny homeless people the right to sleep on sidewalks, we

less container) because abstract space was and is socially produced

Space, Rights, and the Content of Justice

Any “critique of human geography” must be closely tied to normative

graphical contexts. Smith thus provides a sophisticated account of what

needs known, to represent themselves to others and to the state—even

Representation and Public Space

more commonly understood as the right to assembly—that is, those

argument that Lefebvre’s deeply abstract arguments were in part a function

Making Dissent Safe

also indicate a particular understanding of public space that is deeply

BUBBLE LAWS, ABORTION RIGHTS,

Decided in 1994, Madsen v. Women’s Health Center announced the con-

No person shall knowingly approach another person within eight feet of

As with the more general restriction, anyone violating this “bubble”

“approaching” people, “it does not require a standing speaker to move

REGULATING PUBLIC SPACE

of the protesters, had to be carefully regulated. Justice Antonin Scalia

cording to this history of progress, the real liberalization of public space

VIOLENCE, ORDER, AND THE

has been described as violent.”10 The exclusion of violence from public

The seeming irrationality of violence—“acting without argument or